KAHEAʻs testimony that public hearings on OMKM draft rules are premature

Mahalo for allowing me to offer some thoughts on behalf of KAHEA: The Hawaiian-Environmental Alliance  on item VC4, “Authorization to Request Governor’s Approval to Allow the University to Hold Public Hearings regarding Proposed Chapter 20-26, Hawai‘i Administrative Rules, entitled “Public and Commercial Activities on Maunakea Lands”

It is premature to request the Governorʻs approval to allow for public hearings on these proposed rules. There are far too many substantive issues with the rules in their existing draft to put them out for public comment. It would make more sense to get better consensus before spending time and resources in a public hearing process. Involve in a more meaningful way practitioners who will be impacted by these rules—which means including them in the creation of the rules, not merely allowing comments on University-created rules.

Our apologies if the following sections skip around, but we did want to include some areas of specific concern

• 20-26-3: Blanket exemption for UHʻs educational and research activities aka: telescopes. Why? UHʻs activities have the same impact everyone elseʻs does. If we put the resource first and at the center of our decision-making itʻs clear that UH research does not deserve such an exemption. This gets to the heart of why the leasee with high impact use of the land should not be the one creating management rules.

• 20-26-6 Cultural practitioners should not need to pay an entrance fee or for parking to exercise their cultural or religious practices. An exception or accommodation should be added to 20-26-6.

• 20-26-21 Who assesses “impact” when determining if a cultural practice requires a permit?

• 20-26-22 This section is very problematic. UH itself canʻt even follow this proposed rule (specifically parts 1-5) which describes activities that have all occurred during or as a result of telescope development.

o Section 8 prohibiting people from carrying basic tools is an over-reach. Particularly if practitioners need to clear invasives to collect lā`au, or want to use the tools to collect lā`au.

o section 9: could be used to target the construction of ahu. Kānaka should not need to explain/justify the building of an ahu to the university.

o section 10: an added rule to prevent civil disobedience like what occurred in 2015 even though those arrested were largely cleared of any criminal wrong-doing

o section 11: It is absurd for UH to regulate hiking on pu`u while they themselves have LEVELED pu`u.

• 20-26-24: This section is also very problematic largely going against the stated purpose of “promoting public safety and welfare” by prioritizing the scientific community over cultural practitioners accessing the area

o Sections 1 - 3 No cell phones or flashlights? The mountain is vast and it is reckless to propose a ban on cellphone and flashlight use. A dangerous proposal.

• 20-26-31 We whole-heartedly support banning sports meets and competitions

• 20-26-32: Telescope operators should also be subject to restrictions on hazardous materials on the mountain.

• 20-26-38: Prohibition on camping: What about TCP that involve staying overnight to observe the way celestial bodies move in the sky which may include moonrises and moonsets as well as sunrises and sunsets. Accommodation or exemption should be made for practitioners

• 20-26-39: We are against installing a gate, fence, or other “access control structure” on the mauna

o This section uses “public safety and welfare” as a justification for road closures, however, as you may recall these same ideas were used as the rationale to pass the so-called “emergency rules” after civil disobedience in 2015. Rules that were quickly reversed after a successful challenge in court.Those arrested because of the emergency rules had their charges dismissed. People are leery of this language because of this past misuse.

• In terms of night time visiting hours; kanaka should not need to check-in with anyone at UH in order to access the mountain.

• Subchapter 3: Commercial Activity is inappropriate in the wao akua—even if it is regulated via permitting, it is still inappropriate. Taking a page out of the Bible, look at how Jesus dealt with merchants in the temple, itʻs simply incongruent with a sacred place

The concerns listed above are not trivial ones and are a testament that these rules are not ready to be vetted by the public—instead the body that drafted these rules should work at building trust and relationships with the kānaka that will be most affected by these rules. That kind of trust cannot be built at a public hearing. The current draft has too many that allow Hawaiian practices to be regulated out of existence. Please do not authorize a request to Governor Ige to approve these rules to go out for public hearing.

Mahalo for your time,

KAHEA: The Hawaiian-Environmental Alliance