Court hears challenge to emergency proclamation

A state judge says he hopes to have, by the end of today, a decision on a Big Island kumu hula’s challenge to Gov. David Ige’s emergency proclamation restricting public access to Mauna Kea.

Ige issued the proclamation Wednesday in response to protesters blocking the road to the summit to prevent construction of the Thirty Meter Telescope. The proclamation expires Aug. 2, though Ige can extend it.

Paul Kevin Neves of Hilo is challenging the proclamation’s validity. He says restricting access to the summit prevents him from practicing his traditional Native Hawaiian culture.

A panel of three state judges heard arguments for and against Neves’ request Monday for a temporary stay or suspension of Ige’s proclamation.

Deputy Attorney General Craig Iha told the judges that Neves’ constitutional right to exercise his culture and religion is not absolute and that government can establish measures for reasonable access balanced by the need to preserve public safety.

“Deploying human barricades and structures and obstacles or boulders, as (protesters) did in 2015, is unsafe and unlawful. And that is really the emphasis of the proclamation, preventing unsafe and unlawful activity and maintaining public health and safety,” Iha said.

The 2015 protest was part of an effort that invalidated the TMT’s building permits and forced the state Land Board to conduct a contested hearing. After the contested hearing the Land Board in 2017 granted the TMT new permits which the Hawaii Supreme Court upheld last year.

Neves did not attend Monday’s court hearing. He is represented by David Kauila Kopper of the Native Hawaiian Legal Corp.

In addition to being a kumu hula, Neves is a member of the Royal Order of Kamehameha, which is standing with the TMT protesters.

Kopper said he is not aware of any attempts by Neves to block the roadway. And even if he did, Kopper said Neves would have an affirmative defense. He said the protests have been free of violence and that an emergency proclamation is not the way to clear the roadway of protesters.

“The proper response is an adequate police force to enforce laws that exist,” Kopper said.

Circuit Judge Edward Kubo said when police arrested 34 people, mostly kupuna, who were blocking the roadway, according to a written statement from Hawaii Police Department Maj. Samuel Jelsma, tensions escalated with protesters yelling at and surrounding the officers, some of them holding bamboo sticks.

Iha said, “If the situation had arisen to where there was violence, the number of officers at the scene may have had to resort to using tear gas. And that’s why they had to pull back.”

Special Assistant to the Attorney General Krishna Jayaram reiterated after the hearing that Ige has said tear gas will not be used on the protesters.

Kopper said what some protesters were holding were not bamboo sticks but puohe, or bamboo trumpets, and they were not used to threaten violence. He said the situation was resolved a few hours later, peacefully.

For Neves to prevail in his request for a temporary stay or suspension of the emergency proclamation, he needed to show that he’s suffering immediate and irreparable damage. In a written statement, Neves says he goes to the summit to pray on the earth’s equinoxes and solstices, on the anniversary of his mother’s death and when other people are in need of prayer.

Circuit Judge Paul Wong told Kopper it would help the court to know how many days Neves needs to go to the summit.

Kopper said Neves should be allowed to go whenever he wants, when the need arises.

Circuit Judge Gary W.B. Chang addressed the overflow crowd of people who showed up for Monday’s hearing, telling them the court is being asked to make a narrowly defined decision that will not address the social and political concerns of the TMT issue. He also commended the protesters and law enforcement not resorting to violence and asked them to continue to exercise restraint.