Hawaii's high court hears arguments tied to Mauna Kea

Nov. 2—A legal challenge to the University of Hawaii's administrative rules governing uses and activities on Mauna Kea took a detour to the Hawaii Supreme Court on Tuesday.

A legal challenge to the University of Hawaii's administrative rules governing uses and activities on Mauna Kea took a detour to the Hawaii Supreme Court on Tuesday.

The justices heard arguments on the question of whether, in this case, it is the government that must prove its rules are reasonable and do not unduly limit the rights conferred by the state Constitution, or whether the burden is on the challenger to prove the opposite.

The question was sent to the Supreme Court by Kona Circuit Judge Robert D.S. Kim, who put the case's planned trial on hold while exercising a rare legal procedure to gain more clarity on how the matter should proceed.

Plaintiff E. Kalani Flores and his family on Hawaii island filed a suit against the university in June 2020, arguing that the administrative rules restrict the traditional cultural practices and rights of Native Hawaiians in violation of the state Constitution. The rules, for example, limit access to some areas of the summit used for religious practice and restrict practices at night.

The suit was headed for trial when the judge put the case on hold in March in order to ask his procedural question.

On Tuesday an attorney with the Native Hawaiian Legal Corp. argued that the burden of proof should fall on the government, which should always undergird its rule-making with findings of fact.

"We have administrative rules with pages and pages of prohibitions on activities on public ceded lands that restrict practices that the university knows exists on Mauna Kea. But those were enacted anyway, " said Ashley Obrey, NHLC attorney.

"And now it falls on a family who carry this kuleana to protect the place and to protect those cultural activities that exist there, and they have to bear the burden through discovery and trial to prove that the state did not do something. And that is why findings are so important, " she said.

UH and state attorneys argued that the general rule for constitutional challenges to statutes—where the burden of proof rests on the challenger—applies to constitutional challenges to administrative rules as well.

"This court's rulings on its precedent has repeatedly stated that legislative enactments, which are equivocal to rules, are presumptively constitutional, and the burden is on the party challenging the validity of the rule, " UH attorney Joseph Kotow ­ski said.

The court adjourned following an hour and a half of argument, plus an additional 20 minutes of delay to correct technical issues associated with the online streaming of the proceeding.

Gov. David Ige signed the administrative rules into law at the beginning of 2020, saying they were designed to offer a new layer of protection for land and natural resources managed by UH on Mauna Kea.

The wide-ranging rules—which survived two rounds of public hearings and underwent numerous revisions over a two-year period—prohibit a number of activities including such things as littering, speeding, causing noise disturbances, setting fires, using drugs or alcohol, operating drones, snow play and camping. The rules also regulate commercial activities, tours and motorized traffic, including off-road driving.

The proposal generated much controversy in the Hawaiian community. Three months before Ige gave his approval, the UH Board of Regents adopted the rules following a lengthy meeting at the UH Hilo campus featuring the testimony of 99 people, most of whom criticized the proposal for being too restrictive of Native Hawaiians and cultural practitioners. Some even said the effort was aimed at those who were protesting construction of the Thirty Meter Telescope.

Flores, a Native Hawaiian cultural practitioner who is a Hawaiian studies professor at Hawaii Community College in Kailua-Kona, previously sued the state in 2014, claiming he was denied the right to a hearing over the sublease UH intended to enter with TMT International Observatory LLC for construction of the telescope.

The case was appealed to the state Supreme Court and rejected because a hearing was not required "by statute, administrative rule or due process under the circumstances of this case."

Flores ; his wife, Pua Case ; and Case's daughter, Hawane Rios, were also a party to the latest TMT contested case hearing.