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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-OCT-2025
08:09 AM
Dkt. 72 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
TYSON K. AU, Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DCC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka and McCullen, JJ.)

Defendant-Appellant Tyson K. Au appeals from the

District Court of the Second Circuit's May 19, 2022 "Findings of

Fact, Conclusions of Law, and Order Denying Defendant's Motion

to Dismiss Complaint" (Denial Order); November 9, 2022 "Findings

of Fact and Conclusions of Law, and Verdict" (Verdict); and

December 16, 2022 Judgment and Sentence of the Court (Judgment). 1

1 The Honorable Lauren M. Akitake presided over the proceedings related
to Au's motion to dismiss. The Honorable Michelle L. Drewyer presided over
the remainder of the trial.
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On appeal, Au contends the district court erred by

(1) denying his motion to dismiss, and (2) failing to conduct a

Lewis and Tachibana colloquy. 2

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and affirm.

In 2021, Department of Land and Natural Resources Law

Enforcement Officer Matthew Pauole (Officer Pauole) observed Au

toss a six-foot, monofilament throw net into the ocean at Kīhei

Boat Ramp in Maui County. Officer Pauole measured the mesh of

the net at one-half inch and cited Au for, among other things,

possessing a throw net with a mesh of less than two inches while

on the shore.

The State charged Au via amended complaint for

violating Hawai‘i Administrative Rules (HAR) § 13-75-10(a).

Under HAR § 13-75-10(a), "[i]t is unlawful for any person who is

in the water or on or about the shore where fish can be taken to

have in the person's possession a throw net with a mesh of less

than two inches stretched mesh."

2 Tachibana v. State, 79 Hawai‘i 226, 236, 900 P.2d 1293, 1303 (1995);
State v. Lewis, 94 Hawai‘i 292, 297, 12 P.3d 1233, 1238 (2000).

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Au moved to dismiss the complaint, arguing his conduct

— "having a throw net with holes smaller than two inches" — was

a "traditional and customary right protected by Article XII,

Section 7" of the Hawai‘i Constitution and Hawai‘i Revised

Statutes (HRS) § 1-1 (2009). 3 The State opposed Au's motion.

At the evidentiary hearing on his motion, Au

introduced testimony from a childhood friend, Cullen Bell. Bell

testified he learned about using nets to fish from his father,

school, and stories or song that were passed through

generations. Regarding mesh size, Bell testified: "I know for

a fact they -- they wouldn't be measuring the holes on their

nets"; "the holes on the nets were small"; and the holes were

"[j]ust enough to let the water pass through."

Au testified on his own behalf. He testified as to

his Hawaiian lineage as far back as 1834. Au testified on

learning to fish from "my ancestors passed down to my

grandmother, my grandfather, my father, to me" and "[m]y friends

teach me."

3 Au also argued the district court should dismiss the complaint under
HRS § 702-236(1)(b) (2014), because his "conduct should be considered de
[m]inimis." On appeal, however, Au does not challenge any of the court's
findings or conclusions in either the May 19, 2022 Order Denying Au's Motion
to Dismiss or November 9, 2022 Verdict related to its determination that he
did not meet his burden in establishing that his conduct was de minimis.

Thus, this court need not address the issue. Hawai‘i Rules of Appellate
Procedure Rule 28(b)(4) ("Points not presented in accordance with this
section will be disregarded[.]").

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For bait fishing, Au "was taught if the eyes are

bigger, you won't be able to catch 'em. So when they're smaller

you're able to catch 'em." Au further explained that "at the

same time you're not killing other fish because the gills don't

get stuck, you know. You can release. It's an easy release as

in with two inch eyes nets, you know, all that stuff, they get

stuck." When asked about catching ‘oama with a hook, Au

responded it was possible but "[t]here's like a certain amount

of time they're not eating" or "you're working all day" and

"[s]o you have to catch 'em with a net."

When asked, "were there regulations on . . . ancient

Hawaiians net sizes[,]" Au responded, "No." Au, however,

acknowledged "restrictions can still be there . . . . [I]t can

be managed . . . ."

Au further testified that Kīhei Boat Ramp has a

parking area, a bathroom, and a shower.

Although the State asserted Au did not show he was "a

descendant of native Hawaiians who inhabited the islands prior

to . . . 1778[,]" it acknowledged Au is Hawaiian. The State

also "concede[d] that net fishing is a traditional practice done

by native Hawaiians" and "no one is stopping Mr. Au from using a

net to fish" but "[i]t's the size of the net that matters." The

State argued that "the regulation is about the size" and "the

State's interest is the preservation of fish for future

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generations." The State further argued Kīhei Boat Ramp is

"fully developed land."

The district court found Au failed to meet all three

State v. Hanapi factors and denied Au's motion to dismiss.

89 Hawai‘i 177, 185-87, 970 P.2d 485, 493-95 (1998). The case

proceeded to trial. The district court found Au guilty and

sentenced him to pay a $150.00 fine plus a $30.00 criminal

injury fee. The district court stayed the sentence pending

appeal.

(1) We first address Au's contention that the

district court erred in denying his motion to dismiss, because

he "satisfied the three factors set forth in" Hanapi, 89 Hawai‘i

at 185-87, 970 P.2d at 493-95.

Under Hanapi, defendants asserting the defense that

their conduct is a constitutionally protected Native Hawaiian

right have the burden of showing: (1) they qualify as a Native

Hawaiian "within the guidelines set out in" Public Access

Shoreline Hawai‘i v. Hawai‘i County Planning Commission (PASH),

79 Hawai‘i 425, 448-49, 903 P.2d 1246, 1269-70 (1995); (2) their

"claimed right is constitutionally protected as a customary or

traditional native Hawaiian practice"; and (3) "the exercise of

the right occurred on undeveloped or 'less than fully developed

property.'" Hanapi, 89 Hawai‘i at 185-86, 970 P.2d at 493-94

(citations omitted). All three factors must be proven.

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Assuming, without deciding, Au met his burden as to

the Hanapi factors, "[i]t must be determined whether [his]

conduct was reasonable, by balancing the State's interests in

regulating [his] activity with [his] interest" in engaging in a

traditional and customary practice. See State v. Armitage, 132

Hawai‘i 36, 54, 319 P.3d 1044, 1062 (2014). In balancing the

State's interest and Au's right, courts look to whether

defendants attempted to exercise their traditional and customary

practice "in accordance with the laws of the State." See id. at

54-55, 319 P.3d at 1062-63 (citation omitted).

Gathering from the sea is firmly rooted in Hawaiian

tradition and custom. "Along the seashore and in the ocean,

Hawaiians would gather items such as limu (seaweed), ‘opihi

(limpets), wana (sea urchins), and other marine products to

supplement their daily diet. Hawaiians also gathered i‘a (fish),

their primary protein source, in areas ranging from coral reefs

to deep water." David M. Forman & Susan K. Serrano, Traditional

and Customary Access and Gathering Rights, in Native Hawaiian

Law: A Treatise 776, 782 (Melody Kapilialoha MacKenzie et al.

eds., 2015) (footnote omitted).

But gathering from the sea did not go unchecked —

there were certain kapu (prohibitions):

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For instance, with regard to sea gathering practices,
a kapu was placed on deepwater fishes such as the aku
(ocean bonito) and the ‘ōpelu (mackerel) during spawning
season. Such fish were susceptible to overfishing because
they bore their young in the open ocean--as compared with
the manini (reef surgeonfish), uhu (parrotfish), palani
(surgeonfish known for its strong odor), and kala
(unicornfish), which bore their young in protected tidal
pool areas. The resident chiefs could impose kapu
regulating the size, type, and number of items gathered, as
well as the manner in which they were gathered--subject to
overrule by a higher-ranking ali‘i.

Id. (emphasis added). "Native practitioners continually

reaffirm their knowledge of the ‘āina and its resources through

the exercise of traditional and customary gathering, hunting,

and fishing practices for subsistence, cultural, and religious

purposes." Id. at 791. "Importantly, such practices are not

intrusive or obnoxious but are conducted with 'honor and respect

for traditional ‘ohana cultural values and customs in the

harvesting of natural resources and the sharing of what is

gathered with family and neighbors.'" Id.

Following the hearing on Au's motion to dismiss, the

district court concluded (albeit in its de minimis analysis)

that "HAR § 13-75-10 is in place to manage, conserve, and

restore [Hawaiʻi's] fishing resources for present and future

generations[,]" and the "harm or evil likely sought to be

prevented is the over-fishing of smaller, younger fish to allow

growth and reproduction to provide for future generations."

(Some formatting altered.)

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Au, however, did not show HAR § 13-75-10(a)

unreasonably regulates the exercise of his claimed right. See

PASH, 79 Hawai‘i at 451, 903 P.2d at 1272 (holding reasonable

exercise of customary or traditional rights must be protected to

extent feasible). Nor did he present evidence that he attempted

to catch bait fish in accordance with applicable regulations by

using a scoop net or obtaining a permit to use a fine mesh throw

net. 4 See Armitage, 132 Hawai‘i at 54, 319 P.3d at 1062

(explaining defendants "made no attempt to avail themselves of

the applicable procedures to obtain lawful entry into the"

Kaho‘olawe Island Reserve); State v. Pratt, 127 Hawai‘i 206, 218,

277 P.3d 300, 312 (2012) ("While Pratt has a strong interest in

visiting [the restricted area], he did not attempt to visit in

accordance with the laws of the State.").

Thus, under the circumstances in this case, the

balance weighed in favor of the State's interest to regulate net

size and protect smaller fish, and Au did not show he was

protected from penal liability when fishing with a throw net

that had half-inch stretched mesh. See Armitage, 132 Hawai‘i at

55, 319 P.3d at 1063 (holding "the balance weighs in favor of

the State's interest in protecting the health and safety of

4 HAR § 13-75-14(a)(7), for example, permits "[a]ll persons [to] use
hand nets or scoop nets of smaller mesh to take fish or other marine life for
noncommercial purposes only; provided that the net, including any handle and
other attachment thereto, shall not exceed three feet in any dimension."

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those individuals who travel to Kaho‘olawe" and defendants'

"activities then do not fall within a haven protecting them from

criminal liability").

(2) Au next contends the district court violated his

right not to testify by failing to administer a Lewis and

Tachibana colloquy. Tachibana v. State, 79 Hawai‘i 226, 236, 900

P.2d 1293, 1303 (1995); State v. Lewis, 94 Hawai‘i 292, 297, 12

P.3d 1233, 1238 (2000).

Courts are required to advise defendants of their

right to testify and right not to testify and, in so doing,

obtain an on-the-record waiver. Tachibana, 79 Hawai‘i at 236,

900 P.2d at 1303; Lewis, 94 Hawai‘i at 297, 12 P.3d at 1238;

State v. Torres, 144 Hawai‘i 282, 294-95, 439 P.3d 234, 246-47

(2019). The Lewis colloquy is conducted prior to the start of

trial, and the "ultimate [Tachibana] colloquy should be

conducted after all evidence other than the defendant's

testimony has been received[.]" Tachibana, 79 Hawai‘i at 237

n.9, 900 P.2d at 1304 n.9; Lewis, 94 Hawai‘i at 294, 12 P.3d at

1235.

Inexplicably, the district court did not conduct

either colloquy. The district court thus violated Au's

constitutional right not to testify.

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"When the violation of a constitutional right has been

established, 'the conviction must be vacated unless the State

can prove that the violation was harmless beyond a reasonable

doubt.'" Torres, 144 Hawai‘i at 290-91, 439 P.3d at 242-43

(quoting Tachibana, 79 Hawai‘i at 240, 900 P.2d at 1307).

In "assessing whether the error was harmless, a

crucial if not determinative consideration is the strength of

the prosecution's case on the defendant's guilt." Id. at 291,

439 P.3d at 243 (citation modified). And if defendants testify

without being advised of their right not to, courts will ignore

their testimony and consider whether "the evidence presented by

the State with respect to the charges . . . is nonetheless

overwhelming." See id. at 291, 439 P.3d at 243.

Because Au testified at trial without the required

colloquies, we consider only the evidence the State presented.

See id.

Again, under HAR § 13-75-10(a), "[i]t is unlawful for

any person who is [(1)] in the water or on or about the shore

where fish can be taken [(2)] to have in the person's possession

[(3)] a throw net with a mesh of less than two inches stretched

mesh."

Officer Pauole testified he observed Au standing "on

that little sandy cove to the right of the -- of the boat ramp

on the shoreline"; "holding a monofilament throw net"; and

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throwing the net into the water. Officer Pauole further

testified to measuring Au's throw net with a state-issued

caliper, and "[t]he size of the net was recorded at a half inch

stretch mesh."

The district court found "Officer Pauole's testimony

to be credible." Without considering Au's testimony, the

evidence the State presented supported each element of the

offense.

Thus, there is no reasonable possibility the failure

to colloquy Au contributed to his conviction. The district

court's error was harmless beyond a reasonable doubt. See

Torres, 144 Hawai‘i at 290-91, 439 P.3d at 242-43.

Based on the foregoing, we affirm the district court's

May 19, 2022 Denial Order; November 9, 2022 Verdict; and

December 16, 2022 Judgment.

DATED: Honolulu, Hawaiʻi, October 31, 2025.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Jon N. Ikenaga,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Renee Ishikawa Delizo, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.