Testify against proposed "emergency” rules for Mauna Kea on July 10

photo: Candace Fujikane

Testify against proposed "emergency” rules for Mauna Kea. First, there is no emergency - no one has placed natural resources in "imminent peril.” Second, but more importantly, the "emergency rules” are pretextual. Their aim is rather to stifle legitimate, political speech to protect Mauna Kea against the Thirty-Meter Telescope (TMT).

WHO: We need to tell the Board of Land and Natural Resources (BLNR) NOT to approve "emergency” rules for Mauna Kea.

WHAT: "Emergency” rules proposed for Mauna Kea could authorize DLNR to severely restrict public access to the mauna and impose severe penalties for violations. These emergency rules are separate from the Office of Mauna Kea Management’s rules, which they held "open houses” on in late June 2015.

WHEN: July 10, 2015, 1:00PM (or later). Testimony signups from 8:45am-1:00pm.

WHERE: Kalanimoku Building, 1151 Punchbowl St., Land Board Room 132, Honolulu

WHY! To support the Kū Kia‘i Mauna, constitutional rights to assembly and political free speech, Hawaiian cultural practitioners in their vital practices, and public access, recreation, and enjoyment of the pristine environs of Mauna Kea.

DLNR’s proposed "emergency” rule follows:

Hawaii Administrative Rule (HAR) §13-123-21.2 Prohibited activities.

(a) The area covered by this rule is described as any lands within one mile of the Mauna Kea Observatory Access Road and referred to in this rule as the "restricted area.”

(b) No person shall at any time bring in to the restricted area or possess or control in the restricted area any of the following items: backpack, tents, blankets, tarpaulins, or other obvious camping paraphernalia.

(c) No person shall enter or remain in the restricted area during the hours of 8:00 p.m. to 5:00 a.m., except to the extent the person is transiting through the restricted area in a motor vehicle on the Mauna Kea Observatory Access Road.

Impacts of the Rule

The Access Road is 14 miles long, which means 28 square miles or 18,000 acres will be "restricted areas.” No one will be able to "camp” or even have a backpack in this 18,000 acre area. This area would cover 13,500 football fields.

Most troubling are the enforceable penalties for violating this emergency rule, which include: $2,500 civil fine (first offense) to $10,000 civil fine (third offense) (HRS §171-6.4), petty misdemeanor criminal liability (HRS §171-31.6), minimum $500 criminal fine (first offense) to $2,000 (third offense within 5 years) (HRS §171-31.6), up to 30 days jail (HRS §171-31.6), asset forfeiture of cars, etc. used in violation of the prohibitions (HAR §13-123-22 and HRS §171-31.5), and the loss of your hunting license.

How could this happen?

Agencies can do "emergency rulemaking” if it finds "an imminent peril to the public health, safety, or morals, to livestock and poultry health, or to natural resources” and that rule could only be effective for a maximum of 120 days, but BLNR could renew it. HRS §91-3(b). DLNR offered the vague rationale that the rules are proposed "to address impacts to natural resources that are occurring [in [areas within one mile of the Access Road] due to the presence of permanent encampments and their associated structures, facilities, activities, and impacts, as well as to eliminate the risks posed to public safety that result from the presence of numerous individuals that remain in those areas after dark[.]”

What do you think of DLNR’s reasons? Well, this is what we think:

Talking points:

We need to press BLNR to scrutinize the necessity of proposed rules and to assess the real impacts of these rules and the procedures through which these "emergency rules” gained traction.

1. What evidence does DLNR have of "imminent peril” consequent to encampments near roads to Mauna Kea? Kū Kia‘i Mauna camps have remained by Hale Pōkahu, far from sensitive summit environments - how is their presence more of a threat than the 300,000 visitors and over 32,000 vehicles every year (i.e. over 270 people per day)? Kū Kia‘i Mauna have provided their own portable sanitation facilities, trashbags, and transported their waste away from the Mauna. How can DLNR justify a need for "emergency” rules when there is a long history of actual natural resource threats and concerns from the lack of management and enforcement in the summit area that continue to remain unaddressed?
2. The state’s attempts to limit Kānaka Maoli rights to care for (un)ceded lands or to observe cultural practices in a sacred space violate the spirit of the 1993 Apology Resolution and rights guaranteed to Native Hawaiians under article XII, section 7 of the Hawai’i constitution. Protecting Mauna Kea and holding it in reverence as a sacred, spiritual realm are traditional and customary practices that are constitutionally protected.
3. Would prohibiting and penalizing any activity near the Access Way prevent peril to "natural resources”? DLNR failed to identify the "peril” to natural resources that initiated their proposed emergency rule.
4. The Kū Kia‘i Mauna have been an excellent conduit for the many and varied political and spiritual protective energies that have been brought to the mauna. How would forcibly removing this peaceful, organized force ensure the protection of public safety and natural resources?
5. DLNR lacks documentation of imminent and serious threats to public safety and natural resources consequent to "camping” alongside the summit access road. "Campers” have rather sought to exercise significant constitutional and due process rights relating to the First Amendment and the right to assembly. DLNR’s proposed arbitrary declaration of "public safety” is a thin and illegal veil for its primary purpose in dispersing people working to protect a place sacred to Kanaka Maoli, in accordance with HRS 711-1107 on desecration and U.S. Public Law 95-341, the American Indian Religious Freedom Act, which includes Native Hawaiians.
6. DLNR’s submittal did not explain how existing laws were not sufficient to address the alleged threats to public safety or natural resources.

What's Next

We submit testimony on Item C.2 on the BLNR agenda, at least by Thursday 7/9 at 9am (needs to be 24 hours in advance). You can email DLNR administrator Ku`ulei Moses at: kuulei.n.moses@hawaii.gov. And we show up at the Honolulu BLNR meeting as early as 1:00 PM (or earlier if you want to sign up for public testimony). See you there!

Me ke aloha,
KAHEA: The Hawaiian-Alliance, Sacred Summits Committee