DLNR: Permitless Mauna Kea Camping Still Banned

Emergency rules passed in July that restricted camping and possession of certain camping materials in public hunting lands and on each end of the Mauna Kea Observatory Access Road were struck down Friday by the Third Circuit Court in Kona.

Circuit Court Judge Ronald Ibarra issued the partial motion for summary judgement, which invalidated the 120-day emergency rule that was passed by the Board of Land and Natural Resources on July 10 and signed days later by Governor David Ige.

The rules stated that no individual could possess particular camping items, including sleeping bags, tents, a propane burner, or a camping stove. Access to the restricted area, which covered hunting lands along the Mauna Kea Observatory Access Road and one mile of land on each end of the road, was restricted between 10 p.m. and 4 a.m. nightly, unless traveling in a vehicle or entering an observatory.

Native Hawaiian Legal Corporation attorney David Kaulia Kopper said in a statement that the NHLC felt that Department of Land and Natural Resources chairwoman Suzanne Case “failed to follow proper rulemaking procedure in adopting the rule.”

“The Court recognized that the State did not follow the rule of law in creating these emergency rules. The State can no longer arrest innocent people who are on Mauna Kea at night for cultural or spiritual reasons,” said Kopper, who represented Professor E. Kalani Flores in the lawsuit challenging the BLNR’s emergency rule.

Since the rule was put into effect, 15 people were arrested in two different sweeps by officers from the DLNR Division of Forestry and Wildlife.

“The State adopted an illegal rule to prevent opposition to the TMT at the expense of sincere cultural practices and public expression,” Kopper also said. “Cultural practitioners, like Professor Flores, and the public should not have been put in the impossible position of choosing between giving up their nighttime practices on Mauna Kea or becoming a criminal.”

DLNR says that Friday’s court decision invalidating the 120-day emergency rule on Mauna Kea, which prohibited an overnight presence along the upper Mauna Kea road, does not include access without a permit.

A day after the ruling was issued by Judge Ibarra, DLNR said that camping in forest reserves and public hunting areas without a permit continues to be illegal under Hawai’i Administrative Rules.

According to DLNR, the following rules pertain to activities on Mauna Kea, all State of Hawai’i Forest Reserves, and public hunting areas:

• Using motor vehicles without due caution for the rights or safety of others or in a manner that endangers any person or property.
• Camping or residing or any construction, improvement or occupancy or use of any structure within a forest reserve without a written permit from the State Board of Land and Natural Resources.
• Damage or disturbance of any property of improvement.
• Disorderly conduct, which creates a hazardous or physically offensive condition by any act which is not performed under any authorized license or permit.

Hawai’i Administrative Rules also prohibit the removal, damage, or disturbance of any geological or paleontologic feature or substances.

DLNR says that it will “continue to enforce these regulations.”