‘Protectors’ might swap trial for Hawaiian-style mediation

Instead of a trial, most of the people arrested in April for blocking construction of a giant mountaintop telescope will likely participate in a Hawaiian culture-based form of mediation.

Three defendants in the case filed a motion asking for hoo­pono­pono as an alternative to a trial. Hoo­pono­pono is traditionally used within families to work out differences, using prayer and discussion.

Hawaii County Prosecuting Attorney Mitch Roth said his office supports the motion. He met with defendants Monday night to discuss how the unique process might be used in a criminal case that is rooted in protesters’ belief that they are protecting Mauna Kea, a site they consider sacred, from desecration.

Thirty-one people were arrested in April when protesters blocked workers from accessing the construction site near the summit of Mauna Kea for the planned $1.4 billion Thirty Meter Telescope. Roth’s office later moved to dismiss trespassing charges for 10 defendants.

Roth said hoo­pono­pono is being considered only for the remaining 21 people charged with obstructing. A few of them have told prosecutors they prefer to proceed with a trial, he said. It’s not being considered for 12 people who are charged in a second round of arrests last month.

"It may not be pure hoo­pono­pono. It may be something culturally based between hoo­pono­pono and mediation," Roth said Tuesday. "We’re open. We would not be a party to it. We’re trying to facilitate how this would happen."

In doing that, Roth has asked the defendants to come back to his office in about two weeks with parameters for the process. Roth said he envisions other participants to be representatives from the Governor’s Office, the state Attorney General Department, the state Department of Land and Natural Resources, the nonprofit firm building the telescope and the University of Hawaii, which is responsible for managing stewardship of the mountain.

"We fully respect his discretion in deciding how he wants to proceed with it," said Joshua Wisch, a spokes­man for the state attorney general’s office. Roth is having conversations with the state, Wisch said, but the state hasn’t yet decided whether it will get involved.

The TMT International Observatory Board has said previously in a statement that it appreciates the invitation to participate in hoo­pono­pono but hadn’t yet received details.

This won’t be the first time a Hawaii court case uses hoo­pono­pono.

In 2006 a federal judge in Hono­lulu let Hawaiian groups and the state’s largest museum use hoo­pono­pono in a dispute over a cache of priceless artifacts. It has been used in family court cases such as custody disputes, said Malcolm Naea Chun, a Native Hawaiian culture scholar.

It’s a process of making a dispute pono, or right, said Malia Aku­ta­gawa, an expert in Native Hawaiian rights and law at the University of Hawaii’s law school. She likened it to the tedious task of untangling knots. There also has to be a willingness to admit wrongs, she said.

"Quite honestly, prayer is very essential," she said. "People may have different religions … however people want to frame it, but there is a sacred element that enters."

Telescope construction remains stalled amid the protests. The opposition prompted Gov. David Ige to say Hawaii needs to do a better job of caring for the mountain. He laid out some actions he wants the university to undertake, including decommissioning some of the 13 telescopes already on the mountain. The California Institute of Technology announced in May that it will begin decommissioning its Submillimeter Observatory next year.

On Tuesday the University of Hawaii announced the second telescope to be decommissioned will be the Hilo campus’ educational telescope, called Hoku Kea.

The state Board of Land and Natural Resources on Friday will consider a proposed emergency rule that would restrict access to Mauna Kea’s summit. The proposal would restrict camping on the mountain.

Protesters have been camping on the mountain in an attempt to block construction. "Individuals remaining in the area have reportedly caused visitors and workers to feel harassed," state Attorney General Doug Chin said in a statement, noting other concerns such as boulders placed in the road, unauthorized portable toilets trucked to the mountain and increased water use.