The Board of Land and Natural Resources voted 5-2 Friday night to impose an emergency rule designed to restore order near the summit of Mauna Kea.
The 120-day emergency rule would restrict access to anyone not traveling in a vehicle on Mauna Kea Access Road from 10 p.m. to 4 a.m. and prohibit camping gear, including blankets and tarpaulins, within 1 mile of the road at any time.
The rule ostensibly would allow construction to resume on the Thirty Meter Telescope, the subject of months of protests.
More than 100 speakers testified over nearly eight hours Friday, filling up the tiny BLNR boardroom and spilling out into the halls of the state Department of Land and Natural Resources building on Punchbowl Street in Honolulu.
The board went into executive session behind closed doors shortly before 9 p.m. and came out for deliberations just after 10 p.m.
"We need the tools to keep order on the mountain," said board member Chris Yuen, who made the motion to approve the rule. "It’s sad that it has come to this point."
In voting for the rule, the board declared there was "imminent peril to the public health or natural resources." James A. Gomes and Ulalia Woodside voted in the minority.
During the hearing, speakers vowed to challenge the rule in court and continue the protest on the mountain in defiance of the law.
"There will be no question there will be a mass, coordinated civil disobedience on Mauna Kea to break these rules," said Andre Perez, a Hawaiian cultural practitioner and community activist from Waiawa who was arrested protesting on the mountain June 24.
"This is a very bad move by the state. The Hawaiian community will not forget this for a very long time," Perez declared.
Earlier, state Attorney General Doug Chin explained the emergency rule was born from a laundry list of problems created by the protesters who have maintained a 24-hour presence near the Mauna Kea Information Station for the last three months.
The problems, he said, include blocking the road, defying authority, threatening workers and putting undue stress and increased financial hardship on area resources.
But it was the protest on June 24 — when protesters blocked the road with rocks and boulders — that changed everything, Chin said. It showed just how vulnerable the summit area is and led to development of the rule, he said.
As proposed, the regulation is simply designed to promote safe access to the summit and re-establish order with a clear set of rules, Chin said.
"We’re having a difficult time enforcing the law, and that’s why we’re asking for this emergency rule," he said.
But protest leader Kaho‘okahi Kanuha condemned the action as criminalizing the "protectors," the name they call themselves.
"I think it’s clear this law directly targets people like me, people who have been on the mountain for the past 107 days. We’re not there camping. We’re there holding a vigil, conducting ceremony at least three times a day."
He said the group is there only out of necessity to block what appears to be the imminent desecration of the mountain, the construction of the $1.4 billion TMT project.
"It requires a 24/7 watch and that’s essentially what we’re doing. And this law, one, I think it’s silly; two, I think it’s irresponsible; three, I think it’s weak; and four, to be quite frank, I think it’s pathetic."
Many speakers blasted the emergency rule as a tactic by the state to clear the way for construction of the 18-story telescope, which has been billed as one of the largest and most powerful ground-based telescopes in the world.
On Thursday the state released three months of activity logs maintained by the University of Hawaii’s Maunakea Visitor Information Station and Office of Mauna Kea Management rangers, along with some highlighted incidents intended to illustrate the need for the emergency rule.
Testimony from Mauna Kea rangers, workers on top of the mountain and astronomy officials backed up many of the claims, including incidents of bomb threats, threats of violence against TMT workers, glaring and staring at center staff members, harassing visitors and staff, vandalizing the bathrooms, disrupting center operations and blocking the road.
Stewart Hunter, general manager of the visitor center, said his employees were being harassed by protesters and resources were being taxed to the point that it was costing thousands of additional dollars each month. For those reasons the station was shut down June 24.
Incidents observed by the Mauna Kea rangers include the illegal construction of shelters and cultural features in the forest reserve near the visitor center, plus the discovery of invasive ants and plant material identified as high risk for introduction of invasive species.
Doug Simons, speaking on behalf of 10 observatories on the mountain, described a number of significant impacts on the mountaintop community as a result of the June 24 protest. Six observatories were unable to perform observations that night due to the road being impassable from rocks and boulders.
Simons, director of the Canada-France-Hawaii Telescope, said one observatory was unable to conduct advance work for NASA’s flyby of Pluto by the New Horizons spacecraft, and a team of eight scientists and engineers from Taiwan was blocked from a planned trip to Mauna Kea.
The worst part, he said, is the fear the road could be close at any time and that employees would be cut off from their safety lifeline and ability to get help in an emergency.
Kanuha vehemently denied many of the problems.
"I’ve been up there from the beginning, and I know for a fact we’ve held ourselves to the highest standards," he said. "Am I gonna deny there have been absolutely no incidents on the mountain? Absolutely not. I’m sure there have been some. But in many of the things we have been accused of, I will stand firm and say that it is absolutely false."
Felicia Cowden implored the board to give the protesters a break. She said the power struggle on the mountain should be no surprise and has been acknowledged by TMT as a risk of doing business.
"The First Amendment rights to peacefully assemble, freedom of speech and religion are being violated by these proposed rules," Cowden told the board. "Please stand on the right side of history."
Many speakers pointed to the protesters’ rights under what they called the lawful authority of the kingdom of Hawaii.
"Your emergency rules are another fine example of history repeating itself. Whether it be the self-proclaimed provisional government in 1893 or the entity that claims to be the state government today, the tactics are the same: manipulate the facts, spin the truth, change the rules to achieve your goals," Michelle Sakarai said.
She added, "The only emergency facing Mauna Kea today is further desecration by TMT."
Declaring the rule unconstitutional, UH law professor Williamson Chang said he would be filing a request for a contested case hearing. He said DLNR has no authority under state law to regulate camping, access and use at night by nonhunters, plus the possession and control of such things as backpacks and tarpaulins.
"This will be decided in the courts," he said.
Lilikala Kame‘eleihiwa, UH-Manoa Hawaiian studies professor, accused the state of violating U.S.-approved United Nations treaties ensuring indigenous rights and doing so to the point of committing cultural genocide.
"The United States has a duty to uphold these rights," she said. She suggested opening up a campground near the information station as a compromise.
Other testifiers told of being collateral damage to the rules. Hunters said their movements would be curtailed in the restricted areas, while others objected to the potential restrictions on cultural and religious practitioners who go up the mountain at various times of the day. Commercial operators also testified against the rule, saying nighttime stargazing and other activities might be affected.
Kanuha told the board, "You gotta do what you gotta do, but we’ve gotta do what we’ve gotta do. This rule, it will not stop us. That is the truth."
"We don’t plan to leave until Mauna a Wakea is safe. And until that happens we will be there," he said.
