KAHEA Testimony on OMKM Rules

Posted by Lauren Muneoka at Mar 14, 2019 11:50 PM |
KAHEA's March 2019 testimony on Office of Mauna Kea Management Rules

To: University of Hawai‘i Government Relations Office
2442 Campus Road, Administrative Services Building 1-101
Honolulu, Hawai‘i 96822
email: MKRules@hawaii.edu

Subject: Comment on informal consultation draft, dated January 2, 2019, HAR chapter 20-26, "Public and Commercial Activities on Mauna Kea Lands,” from KAHEA: The Hawaiian-Environmental Alliance.

To whom it may concern,

The following comments are submitted on behalf of KAHEA: The Hawaiian-Environmental Alliance, a Hawai‘i nonprofit organization. While we appreciate the gesture of seeking to improve the rules that went out to public hearings last September 2018, the fundamental flawed premises of these rules remain in the current draft proposed HAR chapter 20-26.

Rather than a point-by-point analysis of the rules, we provide historical context to highlight issues with the direction the rules have taken. In brief, the state Auditor recommended rulemaking as a means to address: (1) the observatories’ violations, and (2) increased traffic, in large part due to BLNR and the University’s permitting of commercial tours. The proposed rules specifically exempt University and observatory personnel and unduly regulate public access, including access necessary for Kia‘i Mauna, cultural practitioners, the exercise of free speech and assembly, and enjoyment of the Mauna.

(1) Rules are primarily intended to regulate the University, observatories, and commercial tours.

In 1984, the University developed a management plan that required rulemaking. Although it drafted rules on parking and permitted uses, the University delayed doing anything for eleven years.

In 1995, Nelson Ho of Sierra Club, went to the summit to investigate windblown construction debris from the observatories that were entering the Ice Act Natural Area Reserve and impinging on ahu that ring the summit.  Ho contacted the University and the then-Institute for Astronomy Director, Don Hall went with Ho and others to the summit. They saw 55-gallon drums blown into gullies, a lot of construction debris, and some trash left by tourists close to the summit. Hall said the University would get it cleaned up.

Four months later, the trash was still there. Ho hiked around the summit collecting debris with the names of telescope facilities on it. The Hawai‘i Tribune Herald ran a front page story on the issue.

Also in 1995, the University and BLNR drafted a new management plan that transferred most responsibilities back to DLNR because the University “is not structured to manage, control, or enforce public recreational use and areas or process commercial permits.”

In 1998, the Auditor slammed UH’s mismanagement. “Trash from construction was cleaned up only after concerns were raised by the public.” The auditor recommended authorizing UH to make rules to rectify management issues on Mauna Kea lands.

In 2000, without rules in place, UH developed a Master Plan, allowing for at least 40 new telescopes and support structures.  BLNR also transferred authority for administering commercial tours to the University, which accepted this responsibility in 2005.

In May 2004, DLNR fined the University $20,000 for permit violations by four observatories. These violations were uncovered during an inspection required because longtime Mauna Kea protectors initiated a contested case against the Keck outrigger project. DLNR found at least nine violations and the University itself paid the fines for the observatories.  This was called out by the Auditor’s 2005 follow-up audit.

In 2009, the legislature passed Act 132, which granted the University authority to adopt rules “relating to public and commercial activities permitted or occurring on the Mauna Kea lands.”

In 2011, the University drafted rules that were unacceptable to OHA.

In 2014, the Auditor again faulted the University for managing without rules.

In 2015, the state attempted to impose “emergency rules” that were transparently directed against the Mauna Kea Kia‘i, resulting in 15 arrests and 6 citations. The Flores-Case ‘Ohana successfully challenged the emergency rules in court and Judge Ibarra ruled them invalid.

In June 2018, despite strong public opposition and the misgivings of its owns members, the University Board of Regents authorized OMKM to move forward with the formal process to create rules governing Mauna Kea summit lands. Many of the Regents reasoned that the public vetting process would fix issues with the rules.

In September 2018, people across the pae ‘āina strongly denounced the proposed rules in written testimony and at public hearings. 

In January 2019, small revisions that do little to address deep structural flaws with the rules were circulated to the public.

(2) Proposed rules are inconsistent with the call for University rulemaking.

In passing Act 132, SLH 2009, legislature found rules were necessary to protect cultural and natural resources and to ensure public health and safety. Yet, the proposed rules run counter to the claim of ensuring public safety by prohibiting having an operational cell phone, flashlight, or machete, which are basic survival tools. §§ 20-26-21, -23. Instead, “public safety” is exclusively addressed under provisions that solely regulate disorderly conduct and vehicular access.  §-34.

We underscore that the catalyst for the rules were observatories’ violations and the University’s mismanagement. Their exemption from the scope of the rules ignores this. §20-26-3. In fact itʻs been cited in at least two environmental impact statements (for the Kecks and TMT) that the observatories has had a substantial, significant and adverse effect on the cultural and natural resources on Mauna Kea. The University president is granted broad discretion to be police, judge, and jury in determining violations and the appeals process.  §§-8, -75. Despite their origins in preventing litter and spoilage of natural areas of the summit, the proposed rules impose fees that will only go to management of the very activities that have caused adverse impact and not towards proactive environmental protections. §§-6, -7.

Proposed public access rules are inconsistent with the University’s Comprehensive Management Plan for Mauna Kea (CMP), approved by BLNR in April 2009. One of the key tenets of the CMP’s Public Access Plan is that “an informed public is best prepared to make good decisions and act responsibly.”  CMP CR-7.  Instead of this focus on education, the proposed rules permit arbitrary closures at the president’s discretion. Hiking is limited to “designated” trails even though practitioners do not only use such trails (particularly because there are no trails designated). § -21(10). People can be asked to leave the summit for any or no reason and then fined up to $2,500 if they do not do so. §-22. These proposed fines unreasonably impose the highest level of the University’s statutory power. Again, this is contrary to the CMP public access plan, which recognized the University’s “responsibility to adopt formal rule to manage public activities” and provided: “[a] range of management control methods will be used, with compliance first sought at the lowest levels of control.” (Emphasis added). Issuance of a $2,500 penalty for a single violation is a highly coercive, punitive means of control.

Cultural practices were never identified as a threat to public safety or summit environments.  The University asserts the proposed rules are not meant to regulate Hawaiian cultural practitioners. However, they propose to regulate “all persons” (which include cultural practitioners) and their public access, parking, road closure, flashlights, cell phones, and undesignated trails.  §§ 20-26-21, -23. The University’s own Kahu Kū Mauna specifically declined to develop protocols for cultural practices, “[p]rotocols are personal and private in nature and to develop a one-size-fits-all protocol is not appropriate.” Cultural practitioner vigils, for instance, may fall under proposed prohibitions against “camping” or leaving items “unattended.” §§-26, -27.  Camping is currently defined (§§20-26-2) as having certain equipment or conducting certain activities between one hour after sunset and one hour before sunrise, “regardless of the intent of the participants or the nature of any other activities in which they may also be engaged.” How then are Hawaiians supposed to conduct traditional astronomy? It is awfully hard to kilo hoku (observe stars) in the daylight, with the exception of the sun.  Utilizing vehicles to access summit areas, parking those vehicles, and leaving them unattended while conducting practices and gatherings are regulated by the rules. §-28. Regulation of group access is unduly burdensome, requiring 15 days of advance notice and indemnification of the University. §-62. Longtime practitioners would be forced to waste time in orientations prior to ascending to summit areas.  §20-26-5.

The rules should expressly state that they do not apply to the exercise of Native Hawaiian traditional and customary practices nor those that accompany those practitioners. More importantly, the University is required to investigate the ways that these proposed rules may impact cultural practices on Mauna Kea and affirmatively develop feasible protections for them under case law interpreting article XII, section 7 of the Hawai`i constitution.

The University has presented us with proposed rules that are inappropriate to the unique place that Mauna Kea is, the communities that it has assembled, and the histories that led to the University’s rulemaking authority in the first place.  We urge you to reconsider bringing the current draft to public hearings without deeply revising them.

Mahalo for considering our comments and opposition to the proposed rules.

Me ka mahalo nui,

Bianca Isaki & Shelley Muneoka on behalf of
2019 Board & Staff, KAHEA: The Hawaiian-Environmental Alliance

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