Judge refutes Mauna Kea restrictions

A Hawaii island Circuit Court judge Friday afternoon invalidated the emergency rule that prohibits camping near the summit of Mauna Kea.

Judge Ronald Ibarra granted a partial motion, saying the state failed to follow the law in crafting the rule prohibiting nonvehicular traffic in the summit area between 10 p.m. and 4 a.m., and camping gear at any time.

The rule was adopted by the state Board of Land and Natural Resources in July to maintain order on the summit amid ongoing protests against the planned construction of the $1.4 billion Thirty Meter Telescope.

In his ruling, Ibarra said the state failed to provide a valid statement to support its assertion that the rule is necessary to prevent an imminent peril to “the public health, safety, morals or to natural resources” of the area.

“Specifically, the ‘presence of persons in portions of public hunting areas, Units A and K, Mauna Kea, Hawaii … between the hours of 10:00 p.m. and 4:00 a.m.’ is not a reason supporting a finding of imminent peril,” the judge wrote.

The plaintiff, E. Kalani Flores of Hawaii island, released a statement late Friday that read, “Today, 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.”

Flores, an educator and cultural practitioner of traditional Native Hawaiian practices on Mauna Kea, was represented by the Native Hawaiian Legal Corp.

In a statement, Flores said Mauna Kea is considered one of the most sacred places in Hawaii.

“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 Wakea during all hours of the night,” he said.

Also responding to the ruling were Attorney General Doug Chin and BLNR Chairwoman Suzanne Case, who released the following statement: “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.”

Joshua Wisch, special assistant to the attorney general, said he didn’t know whether the state would appeal the ruling or whether the BLNR would attempt to modify the law to comply with the judge’s order.

On July 10 the BLNR voted to adopt the rule after eight hours of public testimony, most of which was in opposition to the rule.

The state presented evidence that the protesters were causing problems for the Mauna Kea Visitor Information Station and with area resources. The protesters also had created dangerous conditions by placing boulders on the road to the summit, they argued.

The protesters, however, argued that the state was exaggerating and that the rule would result in limiting cultural practices, among other things.

It is unclear how Ibarra’s ruling might affect those who were arrested in violation of the rule.

State conservation officers arrested eight protesters at the 9,200-foot level of Mauna Kea on Sept. 9, during the second of two enforcement actions since the BLNR enacted the emergency rule in July. Officers arrested seven people and cited six others July 31.

A small group had continued to maintain an around-the-clock vigil near the visitor center, saying they were protecting the sacred mountain against the desecration of TMT work crews, which were repelled on two occasions in April and June.

But the “protectors” last month agreed to end their 24-hour vigil and abandon the tent they were staying in. At the time, protest leader Lanakila Mangauil said the agreement would allow the group to preserve resources and health as cold weather reaches the summit of Hawaii’s tallest mountain.

Meanwhile, construction on the next-generation telescope — originally planned to begin in April — remains stalled.