A request for a contested case hearing was filed with the state Board of Land and Natural Resources on Wednesday, seeking to upend the emergency rule limiting nighttime access on Mauna Kea.
Hawaii island residents Kelii W. Iaone Jr. of Hilo and Hanalei Fergerstrom of Kurtistown filed the petition with the help of Williamson Chang, a University of Hawaii at Manoa law professor.
In his filing Wednesday, Chang also included petitions for a declaratory ruling and repeal of ruling that aim to invalidate the emergency rule approved by the Land Board on Friday prohibiting nonvehicular traffic in the summit area between 10 p.m. and 4 a.m., plus camping gear at any time.
The complaint, among other things, argues that First Amendment rights, including the free exercise of speech, assembly and religion, are being violated, and that procedural errors invalidate the rule. Those errors include the failure to state the reason for the regulation in the text of the rule and the making of last-minute changes without proper public notification.
State officials said they were reviewing the complaint and had no comment.
Meanwhile, at the 9,200-foot level of Mauna Kea, protesters continue to hold vigils at night in protest of the Thirty Meter Telescope despite the new emergency rule limiting access.
A spokeswoman for the governor’s office said the new rule will be enforced once signage is erected and permits are printed. Printed materials describing the rule are also being prepared and will be posted, Jodi Leong said.
For now, construction of the massive $1.4 billion TMT project remains on hold.
"It’s day to day," TMT spokeswoman Jocelyn Collado said of the project’s timeline.
As for the contested case hearing, regulations call for the Land Board to decide at a subsequent meeting whether to grant a petition and schedule a hearing, according to the state Attorney General’s Office.
But Chang requested that the procedure be expedited due to the 120-day duration of the emergency rule and the urgent issue at hand. He said he plans to ask for an order to halt enforcement and request an expedited trial.
Chang also said he may end up filing a lawsuit in state court if the hearing isn’t granted soon.
"There’s a lot of momentum right now," he said.
Chang said the peaceful form of protest engagement known as "kapu aloha" is on trial in this case and that the state hasn’t proved that the damage that justified the new rule was caused by those who engage in kapu aloha.
Both petitioners, Iaone and Fergerstrom, have practiced kapu aloha over the past 100 or so days while trying to halt TMT construction, he said.
"Both petitioners view Mauna Kea as sacred and the construction of the extremely large TMT as sacrilegious," the petition said.
Among other things, the new emergency rule prohibits Fergerstrom from having any interaction with the TMT construction crews, who will now be using the access road at night, according to the petition.
The petition also argues that the state doesn’t have the jurisdiction to regulate Iaone’s activity on the mountain because it never lawfully annexed the Hawaiian Islands and has no jurisdiction there.
Iaone was arrested during a confrontation with TMT work crews April 2, while Fergerstrom is a religious practitioner whose rights are being impinged by the new rule, the petition says.