Court throws out emergency restrictions for Mauna Kea

Circuit court grants partial motion invalidating Mauna Kea emergency rule
Published: Oct. 9, 2015 at 10:54 PM HST|Updated: Oct. 11, 2015 at 1:03 AM HST
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KAILUA-KONA, HAWAII (HawaiiNewsNow) - A state Circuit Court judge has invalidated emergency rules that made it illegal to be on Mauna Kea at night.

The state Board of Land and Natural Resources approved the rules in July after activists who opposed the Thirty Meter Telescope blocked Mauna Kea's access road in an effort to stop its construction at the summit.

The motion invalidating the rules were granted Friday afternoon by Big Island Circuit Judge Ronald Ibarra.

David Kauila Kopper, an attorney with the Native Hawaiian Legal Corporation, filed the lawsuit challenging the rules on behalf of E. Kalani Flores.

"The court recognized that the state did not follow the rule of law in creating these emergency rules," Kopper said in a statement. "The state can no longer arrest innocent people who are on Mauna Kea at night for cultural or spiritual reasons."

"The state adopted an illegal rule to prevent opposition to the TMT at the expense of sincere cultural practices and public expression," said Kopper. "Cultural practitioners, like Professor Flores, and the public should not have been put in the impossible position of choosing between giving up their nighttime practices on Mauna Kea or becoming a criminal."

"They were privileged rules slapped together in an effort to target our specific right to openly protest, to openly protect our sacred places, our natural resources," said Aloha Aina activist Lanakila Mangauil.

The state said the rules were necessary after activists moved rocks and boulders onto the summit road and DLNR agents were forced to turn everyone around because of concerns for public safety.

Some 15 people have been arrested since the rule took effect. But one of those arrested said it's still unclear exactly how the judge's decision will affect them.

"I know our arrests still stand," said Kuuipo Freitas, of Kailua-Kona. "It's just the emergency rules that's invalid. But I'm hoping that this will help toss our cases out."

Kopper also represents Freitas, but she said that she hadn't heard from him as of Friday evening.

State Attorney General Douglas Chin and BLNR Chair Suzanne Case issued a joint statment, which said:

"The State acknowledges the Court's decision and will abide by it. We remind people traveling to Mauna Kea that even in light of today's ruling existing laws and rules remain. It is always illegal to block the road. This includes standing in the road or placing obstructions in the road. These laws will continue to be enforced."

Opponents of the telescope stopped their 24-hour vigil on the mountain three weeks ago, but they say it's because of changing weather conditions -- and an agreement with the state, which has to inform them before construction on the TMT can resume.

"We didn't leave to accommodate the rules," said Mangauil. "We left because it's getting cold and with the agreement we made with the state, there's no real immediate threat."

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