Mauna Kea Emergency Rules Invalidated

Mauna Kea demonstration, 6.24.15. Photo credit: Walter Ritte.

A 120 day emergency rule that was implemented prohibiting camping atop Mauna Kea at night was invalidated by a circuit court judge on Friday, Oct. 9, 2015.

David Kauila Kopper, attorney with the Native Hawaiian Legal Corporation which filed the lawsuit challenging the rules on behalf of E. Kalani Flores, issued a statement following the opinion saying, “the Court recognized that the State did not follow the rule of law in creating these emergency rules. The State can no longer arrest innocent people who are on Mauna Kea at night for cultural or spiritual reasons.”

State Attorney General Doug Chin responded to the news saying, “The State acknowledges the Court’s decision and will abide by it. We remind people traveling to Mauna Kea that even in light of today’s ruling existing laws and rules remain. It is always illegal to block the road. This includes standing in the road or placing obstructions in the road. These laws will continue to be enforced.”

State officials say the emergency rule was intended to establish safe conditions on the mountain for protesters, observatory workers and visitors amid ongoing demonstrations against construction of the Thirty Meter Telescope or TMT atop Mauna Kea.

Since the rule was enacted on July 14, several enforcement operations were conducted, resulting in a total of 21 reported citations or arrests.

• On July 31, 2015, six people received citations and seven people were arrested for violating the emergency rule.
• On Sept. 9, eight people were arrested at a hale structure located at the protest camp.  That hale structure, which is adjacent to the tent, was not removed.
• On Sept. 21, state officers with the Department of Land and Natural Resources dismantled and confiscated a large tent that protesters had erected atop Mauna Kea on the Big Island of Hawaiʻi.

The emergency rule, which has since been invalidated, specifically prohibited camping in the restricted area between the hours of 10 p.m. and 4 a.m.  The rule also prohibited possession of a tent, sleeping bag, or camping stove at any time.

According to the Native Hawaiian Legal Corporation, the Court found that the Department of Land and Natural Resources, Board of Land and Natural Resources, and Chairperson Suzanne Case failed to follow proper rulemaking procedure in adopting the rule.  The NHLC states that the rule was not drafted properly and did not provide proper notice for the reasons it was adopted.

Flores, a professor and cultural practitioner with traditional Native Hawaiian practices on Mauna Kea, commented in a press release filed by the NHLC saying, “Mauna a Wākea (Mountain of Sky Father) is considered one of the most sacred places in Hawai‘i. This mountain was important to our ancestors and is still important to us today for night time cultural practices. We were forced to go to court to challenge the State’s invalid new rule to make sure that Native Hawaiian practitioners, and all members of the public, can access Mauna a Wākea during all hours of the night.”

In a statement, Kopper said “the State adopted an illegal rule to prevent opposition to the TMT at the expense of sincere cultural practices and public expression. Cultural practitioners, like Professor Flores, and the public should not have been put in the impossible position of choosing between giving up their nighttime practices on Mauna Kea or becoming a criminal.”