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State attempts to torpedo Kapu Aloha

A proposed “emergency rule” on the BLNR’s Friday meeting agenda is aimed at breaking up the encampment of protesters on Mauna Kea—the only thing stopping the Thirty-Meter Telescope from being built right now.

Will Caron

It’s now been more than 100 days since Hawaiian activists climbed Mauna Kea to the University of Hawaii’s science reserve to physically prevent the construction of the Thirty-Meter Telescope (TMT), a project whose legality is still being contested in Hawaii’s Supreme Court. The State of Hawaii, now headed by the Ige Administration, has, for all intents and purposes, fully backed the telescope project, even while professing to respect what it calls “the Host Culture” and its viewpoints.

The most recent attempts by the state to break the blockade created by the Mauna Kea protectors, as they have come to be known, have involved wielding the state’s Department of Land and Natural Resources (DLNR) enforcement wing to arrest protesters who impede the access road to the telescope’s construction site. More than 40 activists have been arrested and jailed, but relief funds donated by supportive members of the general public (including a huge sum donated by Abigail Kawananakoa, one of the last traceable descendants of the Hawaiian royal bloodline) have allowed the arrestees to post bail and have allowed the blockade to continue by ensuring a steady supply of food, water and shelter for the protesters currently camped within the Mauna Kea Science Reserve.

A not-so-subtle public relations campaign has also been waged against the protesters, including reports of a bullet hole found in one of the smaller telescopes (Subaru) with the clear insinuation that the protesters are resorting to violence. The hole turned out to be caused by an intake manifold cover on a heavy door which strong winds slammed against the telescope’s wall. Other reports of protesters acting violently have been similarly debunked and vigorously denied by leaders of the movement to defend the mountain from further development, including Kahookahi Kanuha and Lanakila Mangauil, at Office of Hawaiian Affairs meetings and other public venues. Visitors to the reserve have confirmed that protesters have only attempted to talk with them and educate them about the issues of land use and self-determination. Some of the most virulent attempts to discredit the protesters have come in the form of truly appalling comments left on stories and essays covering the issue by individuals who can only be described as hateful and ignorant.

Even when protesters have, in fact, been met with violence, they have refused to break what they call their Kapu Aloha: a non-violent manifestation of civil disobedience that mandates respect for the TMT-contracted workers, tourists and the state’s DLNR enforcement officers. So powerful is this kapu in its emotional effect, that DLNR officers have repeatedly been compelled to apologize to the very protesters they are arresting, often with tears in their eyes and broken voices (see video taken by Mileka Lincoln below).

#BREAKINGNEWS: Hawaii DLNR (Department of Land and Natural Resources) agents just informed the hundreds of protestors who have gathered to prevent the Thirty Meter Telescope construction, that officers & TMT workers will be turning around and no longer asking anyone to leave or make any further arrests. More than 700 people gathered to stand in what they say is protection of a sacred Native Hawaiian space. Seven hours after protestors began lining up to prevent construction of the Thirty Meter Telescope on the summit of Mauna Kea, only 10 people have been arrested and the TMT crew only made it about 1.5 miles up the road.  More details tonight on Hawaii News Now Developing details: #HINews #BehindTheScenes #WeAreYourSource

Posted by Mileka Lincoln on Wednesday, June 24, 2015

The state, meanwhile, has accused the protesters of endangering public safety by placing rocks in the middle of the access road. Now it’s gone one step further, accusing the protesters of endangering the very natural resources they have sacrificed time, money, jail time and—quite literally—blood, sweat and tears to defend. This appears to be a continuation in efforts to discredit the protesters.

“In recent weeks dozens of people have camped on the grounds or remained parked in cars for prolonged periods, either on or near the access road to Mauna Kea,” said Attorney General Doug Chin. “Boulders and rock walls have been placed on the road. Invasive species have been introduced. Unauthorized toilets have been placed on the grounds. Individuals remaining in the area have reportedly caused visitors and workers to feel harassed. Consumption of water, which must be trucked up the mountain, is at record high usage. All of this has occurred in a partially graveled, steeply graded area without markings or guardrails.”

The concern over the environment, particularly the mention of the partially graveled, steeply graded nature of the mountain, seems especially odd considering that the state supports the construction of a 1.44 acre structure up the road from the blockade.

But, as a result, the Board of Land and Natural Resources (BLNR) has added an item to its July 10 (this Friday) meeting agenda that seeks to supplant the protestors from their encampment by instituting emergency rules that would restrict access to the public hunting area (Unit A) which is comprised of the Mauna Kea Forest Reserve, Game Management Area and the Mauna Kea Science Reserve, from the hours of 8 p.m. to 5 a.m., and that would ban camping materials outright.

“The Department of Land and Natural Resources has been delegated the power and duty to manage and regulate all lands which may be set apart as game management areas, public hunting areas, and wildlife sanctuaries,” said Suzanne Case, BLNR chairperson and director of DLNR. “The Department is authorized to promulgate rules to carry out these duties. These rules concern the preservation, protection, regulation, extension, and utilization of, and conditions for entry into wildlife sanctuaries, game management areas, and public hunting areas.”

The rule was submitted by Scott Fretz, acting administrator of the Division of Forestry and Wildlife, and authorized by Case, who was nominated by Governor Ige and approved by the Senate just this past legislative session.

The move is clearly intended to torpedo the blockade by prohibiting “backpack[s], tents, blankets, tarpaulins, or other obvious camping paraphernalia” on the mountain. According to the proposal, the purpose of the emergency rule is to:

...address impacts to natural resources that are occurring in [Unit A] due to the presence of permanent encampments and their associated structures, facilities, activities, and impacts, as well as to eliminate the risks posed to public safety that result from the presence of numerous individuals that remain in those areas after dark, where they may place themselves and others at risk due to the remote nature of the areas and the possible impacts from hazardous conditions and inclement weather.

Additionally, the department claims that the presence of the protesters is endangering the resources of the mountain through “trampling, and other direct impacts, as well as by the accumulation of waste, litter, and other disposables.” This, despite the fact that protesters hold the mountain in highest regard as sacred and are willing to face jail time to defend it from a project which faces more than 200 pages of exceptions, filed by the plaintiffs in the Supreme Court case, to its “all clear” environmental and cultural impact statements (an assessment, by the way, that was based entirely off the TMT’s own assessments of its project’s impacts, which both the university and DLNR took at face value).

Normally, DLNR must give at least 30 days’ notice for a public hearing before it can adopt any new rule authorized by law, and must “afford all interested persons opportunity to submit data, views, or arguments,” all of which must be “fully considered” prior to the agency’s decision on adopting said rule (Chapter 91-3(a), Hawaii Revised Statutes). However, if “an agency finds an “imminent peril … to public health, safety … or natural resources requires adoption, amendment, or repeal of a rule upon less than thirty days’ notice of hearing, and states in writing its reasons for such finding, it may proceed without prior notice or hearing or upon such abbreviated notice and hearing, including posting of the abbreviated notice and hearing on the Internet as provided in section 91-2.6, as it finds practicable to adopt an emergency rule to be effective for a period no longer than one hundred twenty days without renewal” (Chapter 91-3(b) Hawaii Revised Statutes).

Considering what we know about the protesters and their Kapu Aloha—which certainly is not causing “imminent danger” to either the public’s safety or the environment—it’s pretty obvious that the department is using these statutes governing emergency rule-making as a convenient way to get this rule passed without any objection from opponents of the TMT project. The 120 day effective period of the emergency law would make it much more difficult for protesters to prevent the TMT-contracted workers from moving their equipment and materials to the site of the TMT to begin its construction in earnest, giving the project (and its state supporters) time to get off the ground.

Once the telescope’s construction is under way, even if the Supreme Court rules in favor of conservation and cultural protection and declares the project illegal (which it has a history of doing), the damage will have already been done. The clear purpose in the TMT LLC’s and the university’s haste in trying to get the project at least partially built before a Supreme Court ruling is to maneuver into a position where it is “easier to ask for forgiveness than permission,” as the saying goes.

Photo: Tom Callis | Hawaii Tribune-Herald