Ka Wai Ola - Office of Hawaiian Affairs, Volume 32, Number 8, 1 August 2015 — 'I don't think it's constitutional to regulate those rights out of existence' [ARTICLE+ILLUSTRATION]

'I don't think it's constitutional to regulate those rights out of existence'

Aloha mai from Kaua'i and Ni'ihau! In light of the words of Justice Robert Klein at the OHA Board meeting on Lāna'i on July 15, I must agree, I do not think the emergency rules are constitutional. I am deeply troubled by the recent acts of the Board of Land and Natural Resources to adopt emergency rules

in response to a peaceful demonstration and vigil being held by the hui of protectors on Mauna A Wākea. This knee-jerk response by the BLNR and the Governor does not set a good precedent for how we are to address such circumstances. On their face, the rules raise serious constitutional concerns under the United States and Hawai'i State Constitutions by limiting First Amendment rights and cultural access rights. The process by whieh they were adopted raise constitutional issues as well. At their root, these actions taken by the administration have trampled on our traditional and customary constitutional rights. While the Office of Mauna Kea Management Rangers provided a log outlining issues such as vandalism and harassment, there was no factual evidence or determination made that those acts were in fact committed by or a result of the vigil being held by the 10-20 protectors who are regularly on the mountain. And in my opinion, is nothing more than propaganda being used to portray the protectors in a negative light. Furthermore, there is no clear nexus between the protectors' presenee and an imminent peril to public

heahh or safety as required by the law. Especially when considering the fact that hundreds of stargazers are on the mountain every night, often past 12 a.m. Especially when considering the fact that approximately 250-300 visitors drive up and down and hike on the mountain every day. Especially when considering that it was the protectors themselves who provided bathrooms for the public when the University locked down the visitors' center creating a hazardous

situation. This is not the time to act in haste. I strongly urge all parties involved to step back and reassess the circumstances. I believe we ean begin to make progress if all agreed to halt construction until the Hawai'i Supreme Court enters a decision and use the downtime to revisit the master lease of Mauna Kea held by the University of Hawai'i. There needs to be a serious discussion taking plaee about the need for a third-party manager to step in and co-manage the mountain. That third party could be a community group made up of cultural practitioners, experts in environmental sciences, tour operators and, yes, even astronomers. Or it could be some other creative group of individuals and organizations. . . . But the key is collaboration. That is what has been lacking all these years. Other groups have been shut out while one area of science has been crowned king, leaving little to no room for others' input. This must change. It is time to for a complete shift in management of the mountain. And that must be discussed before any more drastic measures are taken to silence the voice of those who are calling for more balance. ■

Dan Ahuna VicE Chair, TrustEE, Kaua'i and Ni'ihau