Judge grants motion invalidating Mauna Kea emergency rule

Circuit Court Judge Ronald Ibarra, Third Circuit, State of Hawaii, granted Friday a partial motion for summary judgment that has the effect of invalidating the Mauna Kea emergency rule.

In July, Gov. David Ige signed the emergency rule, restricting overnight access on Mauna Kea.

Officials said the rule was intended to establish safe conditions on the mountain for protesters, observatory workers and visitors.

It was approved by the Board of Land and Natural Resources in a 5-2 vote:

Prohibited activities.

(a) The area referred to in this rule as the “restricted area” is defined as any lands in the public hunting area that includes the Mauna Kea Observatory Access Road and one mile on either side of the Mauna Kea Observatory Access road.

(b) As used in this rule, the term “transiting” means operating, or being a passenger in, a motor vehicle travelling at a reasonable and prudent speed and having regard to the actual and potential hazards and conditions then existing.

(c) No person shall at any time possess or control in the restricted area any of the following items: sleeping bag, tent, camping stove, or propane burner.

(d) No person shall enter or remain in the restricted area during the hours of 10:00 p.m. to 4:00 a.m., unless the person is transiting through the restricted area on the Mauna Kea Observatory Access Road or is lawfully within or entering or exiting an existing observatory or a facility operated by the University of Hawaii.

David Kauila Kopper, attorney with the Native Hawaiian Legal Corporation, which filed the lawsuit challenging the rules on behalf of E. Kalani Flores, said that “the Court recognized that the State did not follow the rule of law in creating these emergency rules. The State can no longer arrest innocent people who are on Mauna Kea at night for cultural or spiritual reasons.”

The lawsuit argued that “the rule was not drafted properly and did not provide proper notice for the reasons it was adopted,” the firm said.

In response to the ruling, Attorney General Doug Chin and Department of Land and Natural Resources Chair Suzanne Case released the following statement:

“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.”

In June, the University of Hawaii, which manages activity atop the mountain, closed the access road after rocks and walls were constructed across it by self-proclaimed “protectors” to block construction of the Thirty Meter Telescope.

They were removed the following day, but the university’s Office of Mauna Kea Management then had to assess damage and check the stability of slopes for potential rock falls.

The rule was only supposed to be in effect for 120 days, and was set to expire next month.

Work on the Thirty Meter Telescope remains on hold.

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