A panel of three state Circuit Court judges heard arguments Monday about how Gov. David Ige’s emergency proclamation for Mauna Kea could affect the constitutional rights of a Native Hawaiian practitioner.

Judges Paul Wong, Gary Chang and Edward Kubo are expected to issue an order Tuesday on whether the emergency declaration should be halted.

David Kopper, an attorney with the Native Hawaiian Legal Corporation representing Paul Neves, argued that the proclamation, which restricts access to the summit, also restricts Native Hawaiian cultural rights in the state constitution.

Judge Gary Chang makes his decision in the gut and replace.

Judge Gary Chang will rule along with judges Paul Wong and Edward Kubo in a lawsuit over Gov. David Ige’s emergency proclamation.

Cory Lum/Civil Beat

Neves’ court declaration says that he follows a path from Pu’u Huluhulu at the base of Mauna Kea Access Road up to the summit while performing his cultural practice.

Deputy Attorney General Craig Iha, representing the state, said the declaration was necessary to keep the public safe during growing protests over planned construction of the Thirty Meter Telescope.

Iha said cultural practitioners do not have an absolute right to access cultural sites, and that access can be restricted in certain circumstances such as this.

Chang said at the close of the hearing that the court would not be ruling widely on any side of the debate surrounding the telescope construction, but only on whether Neves’ rights are being violated.

“You may have come here with high hopes, that the issues on one side or the other will be resolved. I will warn you that they will not be resolved,” Chang said, adding that the judges have a limited jurisdiction in this case.

The lawsuit filed July 18 alleges that Ige could be violating constitutional rights such as free speech and religion by restricting access on Mauna Kea. It also alleges violations of the state constitution, which requires the state to protect the cultural rights of Native Hawaiians.

And it states that there was no emergency that the governor could use as a basis for issuing the emergency proclamation.

Ige issued the proclamation in response to the protests at the base of Mauna Kea Access Road.

It gave law enforcement broad powers to control access to the mountain. Last week, they restricted public access on the road beyond a cattle guard, where eight protesters attached themselves to a grate for hours July 14.

Ige said during a news conference July 16 that the number of protesters at the intersection of Mauna Kea Access Road and Saddle Road created a “dangerous situation” that disrupted the public’s ability to move freely and caused a diversion of law enforcement resources to Mauna Kea. 

The lawsuit asks that Ige’s proclamation be voided, and that he be found in violation of the state constitution and emergency management law.

Some Hawaii politicians have already called on Ige to rescind the proclamation, including U.S. Rep Tulsi Gabbard and Lt. Gov. Josh Green. They were joined over the weekend by members of the state Senate’s Native Hawaiian Caucus, Reps. Amy Perusso and Tina Wilderberger and several members of the Kauai, Maui and Hawaii county councils.

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