Lā 203: Emergency rule violators won’t face charges

Hawaii Tribune Herald October 14, 2015 By TOM CALLIS 

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TOM CALLIS/Tribune-Herald This July file photo shows a tent and hale erected by protesters on Mauna Kea. A 3rd Circuit Court judge invalidated the state’s Mauna Kea emergency rule Friday.

Criminal charges under the now-defunct Mauna Kea emergency rules will be dismissed, Hawaii County’s top prosecutor said Tuesday.

Third Circuit Court Judge Ronald Ibarra ruled Friday the restrictions were invalid since they didn’t include a statement justifying them.

Prosecuting Attorney Mitch Roth said he will dismiss the charges and citations following the ruling. The state doesn’t plan to appeal.

Twenty people were arrested or cited with allegedly violating the rules during two night-time sweeps carried out by state Division of Conservation and Resource Enforcement officers on the mountain, where Thirty Meter Telescope opponents maintained an encampment.

The rules, which the state Land Board adopted in July in an attempt to end the protesters’ 24-hour presence outside the Mauna Kea Visitor Information Station, made it illegal to be within a mile of Mauna Kea Access Road from 10 p.m.-4 a.m. unless traveling in a vehicle, and specifically banned camping gear. The restrictions were to last 120 days.

TMT protesters felt unfairly targeted by the rules and said others violating the time restrictions went unpunished.

In a statement, Native Hawaiian Legal Corp. attorney David Kauila Kopper, who represented E. Kalani Flores in his lawsuit challenging the rules, said dropping the charges is the “right thing to do.”

“However, it does not make up for the months on Mauna Kea that Native Hawaiian cultural practitioners and the public lost to the state’s invalid rule,” Kopper said.

The Office of Hawaiian Affairs supported the decision in a separate press release and noted it was concerned the rules violated the rights of Native Hawaiians to engage in traditional practices.

“We appreciate the significant efforts of plaintiff Kalani Flores and his attorneys from the Native Hawaiian Legal Corporation for their work in calling to the attention of the courts the shortcomings of the Mauna Kea emergency rule,” said OHA Ka Pouhana and CEO Kamana‘opono Crabbe. OHA said it is a “key funder of NHLC.”

The rules were enacted after reports of disruptive activity attributed to the protesters’ around-the-clock presence. Later, TMT opponents reduced the number of people using the campsite but continued their focus on speaking with visitors and practicing Hawaiian religious protocol.

They agreed to stop camping at the location after state officials promised to let them know if TMT makes another attempt to resume construction on the mountain, which the opponents consider sacred. State officers removed the opponents’ large tent late last month.

TMT opponents continue to use the area, where a traditional hale remains, during the daytime. State officers removed a few pop-up tents erected by the protesters during daytime hours.

After the ruling, the state Department of Land and Natural Resources reiterated in a press release that camping or using structures in the area without a permit remains prohibited.

If that’s the case, why were the rules needed?

A state Attorney General’s Office spokesman said in an email the rules provided “tools necessary to remove individuals who maintained a 24-hour presence.”

“The emergency rule provided that no one could be present for any reason (other than transiting) in the restricted area from 10 p.m.-4 a.m. The restrictions on tents, sleeping bags, stoves and propane burners buttressed this prohibition,” said Joshua Wisch, special assistant to the attorney general.

Email Tom Callis at tcallis@hawaiitribune-herald.com.