Lā 104: Lawyer Challenges Hawaii AG Over Mauna Kea Access

Big Island Video News.com    July 7, 2015 at 6:38 pm

Screen Shot 2015 07 07 At 07.35.32 PmHONOLULU – The attorney for the Mauna Kea Hui claiming to have been “denied access to exercise their religious, cultural and traditional practices on Mauna Kea” has sent a letter challenging the legalities to the Attorney General of the State of Hawaii, Douglas Chin.

The Mauna Kea Access Road has been closed to motorists beyond Hale Pohaku ever since June 24th. That’s the day law enforcement made numerous arrests in an attempt to prevent the self-proclaimed protectors from blocking Thirty Meter Telescope construction crews. During the altercation, rocks and boulders were used to block the road, and were reportedly cleared the next day. In the time since, only astronomy crews and their support services have been allowed to drive up to the summit. A number of practitioners – many of whom are involved in the effort to block TMT from building on the mountain – say they have been denied access to the summit by Mauna Kea rangers, even when the purpose of the trip is stated to be for cultural and religious reasons.

Kealoha Pisciotta of the group Mauna Kea Anaina Hou says that two days ago, she and Mr. Clarence “Ku” Ching, Ms. Keomailani Von Gogh, and Ms. Deborah Ward made an attempt to ascend Mauna Kea and “we where all denied access” by an Office of Mauna Kea Management ranger and at least two state DoCARE Officers.

On July 7th, attorney Richard Naiwieha Wurdeman sent this letter to the Hawaii attorney general:

Dear Mr. Chin:

I am writing to you on behalf of my clients who have been turned away from and denied access to exercise their religious, cultural and traditional practices on Mauna Kea. As you know, these rights are protected under the State Constitution, Hawaii Revised Statutes Sections 1-1 and 7-1, Hawaii case law, and under International Human Rights Law. The lands in question are also “ceded” lands and my clients, as beneficiaries of the “ceded” lands trust under Section 5(f) of the Admission Act, also have every right to be on Mauna Kea.

My clients have been told by OMKM Rangers, while accompanied at the roadblocks by DOCARE officers, who, by the way, have also refused to provide badge numbers and names when asked, such things as you may only enter at 1:00 pm. for a period of time not to exceed one hour and only when there is an OMKM Ranger/DOCARE escort available. On one of the days, such escorts were apparently not even available at the 1:00-2:00 pm. time period. My clients have also learned that there is apparently a no more than 10 Native Hawaiian at a time rule that has been implemented. Apparently, any group of Native Hawaiians, that exceeds ten in number, needs to apply and be issued some sort of permit. My clients have asked to see these specific rules in writing and the OMKM/DOCARE personnel have refused to provide them with copies of any rules. At the same time, complete and unfettered access has been granted to observatory workers at Mauna Kea, which undermines all of this nonsense in the papers about safety issues that has been disseminated by the State Administration and your office, and which also further shows the illegal and arbitrary enforcement of the rules and provisions in question.

The State has also cited in the media its apparent ability to implement “reasonable regulations” to deny access. Please provide me with all sources of the State’s alleged authority, a copy of the written rules and guidelines, and please also state whether any of these so-called rules, which are completely arbitrary and capricious and which also are repugnant to the constitutional, statutory and other legal rights and protections of my clients as cited above, have been implemented pursuant to the Hawaii Administrative Procedures Act, Chapter 91 of the Hawaii Revised Statutes.

It is quite clear that the State Administration is implementing these blanket rules and guidelines solely to facilitate construction of the TMT project to the detriment of my clients, who have every right to be on Mauna Kea and to practice their religious, cultural and traditional rights and practices.

Furthermore, my clients have also raised previously the issue of you being in a professional conflict. You served as the managing partner of the Carlsmith Ball law firm while your firm represented the University in a multitude of issues dealing with the TMT project. You are now the Chief Legal Officer of the State of Hawaii. while your previous law firm continues to represent the University of Hawaii on the TMT issue. As the Chief Legal Officer of the State, you also have a duty and obligation to protect the rights of the Native Hawaiians under Article XII, Section 7 of the State Constitution as well as protections provided by all other provisions of the law.

We look fonNard to your immediate response on the issues raised in this letter as my clients, as well as every one else who is similarly situated, should be granted the full legal protections for which they are entitled, without the arbitrary, capricious and illegal rule-making of the State Government that precludes them from exercising their rights and realizing their legal protections. I will await your timely response prior to the filing of any further actions in the courts and I hope that you will take the appropriate remedial measures forthwith. All rights and claims are hereby reserved.

Thank you for your attention to these matters and please do not hesitate to contact me should you have any questions or should you wish to discuss these matters further.

Wurdeman is also representing the Mauna Kea Hui in the upcoming Hawaii Supreme Court case in which the legality of the state-issued permit to build the Thirty Meter Telescope on Mauna Kea is being challenged.