Invalid Emergency Rule Leads to Dropped Cases

Following Friday’s decision by Third Circuit Court Judge Ronald Ibarra to discontinue the 120-day Mauna Kea emergency rule, the office of Hawai’i County Prosecuting Attorney Mitch Roth dropped criminal charges in 20 cases. All of the dropped cases stemmed from arrests and citations issued during the 120-day emergency ruling period.

A total of 15 people were arrested in two separate sweeps atop the mountain since July. Multiple arrests occurred on July 31, while additional arrests took place on Sept. 9. Fourteen of the individuals were among the 20 to have thier charges dropped.

The fifteenth individual arrested during the time period was a juvenile whose case had since been sent to family court, with a charge that is also expected to be dropped.

During the July 31 arrests, six individuals were also issued citations. Josh Wisch, special assistant to the Hawai’i Attorney General, told Big Island Now in July that those individuals voluntarily left the mountain.

The charges against those six have also been dropped following the discontinuation of the emergency rule, according to Roth.

In a phone interview, Roth told Big Island Now that his office holds the ethical burden to not bring charges that they cannot prove without a reasonable doubt.

“With every case that our office brings, we have an ethical burden not to bring charges or continue charges that we don’t believe we can prove without a reasonable doubt,” Roth said. “As the law was invalidated, we knew we could not prove without a reasonable doubt, and our ethical duty was to dismiss those cases.”

Judge Ibarra invalided the 120-day emergency rule on Friday, Oct. 9. The rule was previously approved by the Board of Land and Natural Resources on July 10 and signed on July 14 by Governor David Ige.

The rule 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.

“Dropping the charges against those arrested [under the emergency rule] is the right thing to do.  However, it does not make up for the unreasonable chilling effect and adverse impact it has had on Native Hawaiian cultural practitioners and the public,” said David Kauila Kopper, staff attorney with the Native Hawaiian Legal Corporation.

The rest of the cases stemming from arrests and citations issued prior to the rule enforcement are still going through the system and are separate from the cases dropped due to the invalidation of the emergency rule, according to Roth.

A total of 43 individuals were arrested prior to the emergency ruling on the mountain for blocking Thirty Meter Telescope crews from ascending the mountain. Thirty-one of the arrests were made on April 2, and a second group of 12 were arrested on June 24.

Ten of the individuals arrested, who were charged with trespassing on April 2, had charges dropped by Roth in late May. Additional members of the group, known as the “Mauna Kea 31,” appeared in court on July 16.