Judges order state to give lone Native Hawaiian practitioner access to Mauna Kea

Updated: Jul. 23, 2019 at 2:18 PM HST
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HONOLULU, Hawaii (HawaiiNewsNow) - In a ruling issued Tuesday, a three-judge panel temporarily suspended Gov. David Ige’s emergency proclamation for Mauna Kea for a single cultural practitioner, allowing him to travel to the summit during daylight hours.

The ruling, though very limited in scope, does appear to open the door to other lawsuits from those who claim the state of emergency is preventing them from practicing at traditional gathering sites.

And it’s likely to be considered a small victory for Thirty Meter Telescope opponents as their protest at the base of Mauna Kea continues into its ninth day.

The Native Hawaiian Legal Corporation filed the challenge to the governor’s state of emergency on behalf of Paul Kevin Neves, a Big Island resident who helped build an ahu at the base of the Mauna.

He said he sometime walked to the summit during solstices, equinoxes and when people need prayer.

“This mountain is about family. It’s much more than any court, any elected official or any police man. This is about the very heart and soul of Hawaii,” Neves said during a press conference after a separate Hilo Court ruling yesterday.

Neves said he accessed the sites on the Mauna Kea Access Road, which has been closed to vehicle traffic since Monday because of the ongoing protest. Following the state of emergency, however, the state further blocked off access to the summit by forbidding any foot traffic on the road.

[Read more: Ige: Big Island mayor will ‘take the lead’ in effort to find common ground with TMT protesters]

The Native Hawaiian Legal Corporation claimed the governor’s emergency proclamation was preventing Hawaiians from practicing their religion and was an overreaction to a peaceful protest.

Rather than issuing a sweeping decision on those points, the three-judge panel ― judges Gary Chang, Edward Kubo and Paul Wong ― made a narrow ruling that only affects Neves.

The judges’ order allows Neves to ascend the mountain on foot or by car during daylight hours.

“The Court wishes to make it clear that this order only applies to the plaintiff,” the order said. “All the other provisions of the EP (emergency proclamation) shall remain unchanged.”

Gov. David Ige issued the emergency proclamation Wednesday, after 38 people were arrested at the protest camp. He said the order was meant to give law enforcement more power to block protests and remove people who enter closed areas around the summit.

On Monday, Native Hawaiian Legal Corporation attorney David Kopper opened the arguments before the unusual panel of three Circuit Court judges, a type of court hearing that is only used for appeals of emergency orders. Kopper reminded the judges that so far the protest has remained nonviolent.

“The governor has manufactured an emergency to favor one private corporation’s right to access Mauna Kea, over the constitutional rights of Native Hawaiian cultural practitioners such as the plaintiff and the general public,” he said.

Deputy Attorney General Craig Iha agreed both protesters and law enforcement had shown restraint, but also said law enforcement commanders were forced to pull back officers when they were surrounded by protesters. He said if they had not withdrawn, the officers may have had to use tear gas to drive back the crowd.

Iha said the real purpose of the declaration was to prevent what happened four years ago, much higher on the slope than where the current encampment is. And he said demonstrators may become more desperate as construction equipment moved up the road.

“They are there to stop TMT and they are doing it by erecting human blockades in the middle of the road,” Iha said. “And no matter how they characterize their activities ... deploying human barricades and structures and obstacles such as boulders as they did in 2015 is unsafe and unlawful.”

During the proceeding, Chang raised his voice when the state attorney seemed to be avoiding his question about whether the emergency declaration was impairing cultural practitioners.

“Not entirely your honor,” Iha tried to say, but Chang interrupted.

Chang: “No, excuse me.”

Iha: “Your honor it’s ...”

Chang: “Excuse me! I am asking you a specific question whether the effect, not the intention ― the effect ― of the proclamation is to prevent Mr. Neves from reaching the summit in some fashion?”

Iha: “Yes, your honor.”

The plaintiffs also raised a federal appeals court ruling issued after riots on the West Coast over the police beating of Rodney King. The court said violent protests on one day were not reason enough to infringe on constitutional rights the next day. The court said the answer would be to have a large enough law enforcement presence to arrest people who actually break the law.

Kopper told the judges that is what should have happened at Mauna Kea.

“The proper response in order to avoid infringing on constitutional rights would be to ensure an adequate police force and enforce the laws that already exist,” Kopper said.

Under the law, the governor has the sole authority to declare an emergency and that declaration cannot be challenged in court. But the courts can step in to prevent unreasonable infringement of civil rights.

The governor’s emergency declaration expires next week, but he has the power to extend it almost indefinitely.

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