Cases dismissed for Mauna Kea kupuna

Twenty-nine elders who were arrested on Mauna Kea during the 2019 protest to stop construction of the Thirty Meter Telescope had their cases dismissed Friday in District Court.

But the group, which includes Office of Hawaiian Affairs trustees Carmen Hulu Lindsey and Mililani Trask and Native Hawaiian activist Walter Ritte, must wait until April 29 to find out whether their journey in the criminal justice system will finally end.

Judge M. Kanani Laubach dismissed the cases Friday, saying they were filed by state attorneys who did not follow the proper procedure.

The decision is in line with a recent Hawaii Supreme Court ruling that made it clear that prosecutors must follow a 130-year-old procedural law requiring a signed affidavit or official declaration from the complaining party.

The Dec. 10 court decision in State v. Thompson has led to the dismissal of over 1,000 misdemeanor and petty misdemeanor cases in Honolulu and scores of others on the neighbor islands. Most of the cases were dismissed without prejudice, meaning prosecutors are able to refile charges.

But in the case of the elders who blocked Mauna Kea Access Road on July 17, 2019, the judge, after hearing arguments from both sides Friday, said she was still weighing her decision about whether charges can be refiled and will announce it in court April 29.

The Department of the Attorney General issued a statement afterward saying the decision, while disappointing, was not unexpected in light of the Supreme Court ruling.

“This decision applies to all complaint cases, not just to these cases, and today’s ruling merely states that the procedure in filing the complaints was flawed, based on the Supreme Court’s interpretation in the Thompson case. They were dismissed on a technical basis and are not rulings on the merits of the cases,” the statement said.

The department said the same judge in two separate trials found three of the defendants broke the law in trying to block the road and two others pleaded guilty.

“The court has deferred ruling on whether the dismissals will be with or without prejudice, so it is premature to indicate our intentions on how we will proceed, however the Department of the Attorney General remains committed to enforcing and upholding the rule of law,” the statement said.

The arrests occurred in the initial week of the protest held to try to stop construction of the controversial TMT project.

A large group of kupuna, or Hawaiian elders, were sitting in rows of folding chairs across Mauna Kea Access Road, and one by one, over four hours, they surrendered to police, were taken away in vans and charged with petty misdemeanors.

Among the 38 arrested were prominent kumu hula Pua­lani Kanahele and educator Noe Noe Wong-­Wilson, one of the leaders of the kiai, or “protectors” of the mountain.

No construction vehicles would pass the roadblock that day, and images of the anguished kupuna would spur support for the anti-TMT movement across the islands.

State attorneys decided to prosecute the case in eight small groups, and the litigation dragged on for 2-1/2 years in part because of the pandemic and the logistical obstacles it presented.

While at least four of the kupuna were found guilty in court and one case was dismissed, another four were found not guilty following trial.

Richard Sing, attorney for Wong-Wilson, offered a statement from his client that said she’s “grateful that these charges have been dismissed and that the brave kupuna who survived almost a thousand days of prosecution can finally move forward with their lives.”

Richard Naiwieha Wurdeman, the attorney for Lindsey and Trask, said charges against the kupuna should have never been brought.

“The Governor’s state of emergency proclamation and the activation of the national guard in response to peaceful protest on a closed road in 2019 were completely unwarranted and unjustified,” Wurdeman said in an email. “With these dismissals, this is an opportunity for the Governor, the Legislature and this new Attorney General to look for solutions rather than trying to perpetuate and continue the deep-seated division in the community. The blatant disregard of the Native Hawaiian community that too often is the case with the State and its leaders in decision-making processes needs to end.”