It is now round three for the Mauna Kea public access rules. The first versions of the rules were simply bad and rightly faced unanimous criticism from the community. Virtually nobody testified in support of the first version at the public meetings.
This latest version of the rules is much better, at least someone properly edited the rules and there are no complete blunders in the language.
There are still some items in the rules that are problematic. In general the university is attempting to regulate public activity on the mauna far beyond their mandate in the lease or in the comprehensive management plan.
In the past I have made my feelings clear on these issues, writing about it here on DarkerView and testifying in the previous public input sessions. For this third round I have again written testimony to be submitted in the public feedback process. I will also be attending the public testimony session that takes place tomorrow at Waikoloa School.
The text of my testimony is included below, I hope it clearly indicates the changes I feel should be made to these rules…
Please consider my input on the proposed Mauna Kea Public Access Rules as published by the Office of Mauna Kea Management on Jan 2nd, 2019. As one who routinely accesses Mauna Kea for both professional and recreational activities I am intimately familiar with the issues of public access on the mauna.
Rules are needed. Rules that protect the land and protect the resources should be clear and enforced. The majority of the rules proposed here do just that, address possible abuse and misuse of the mauna. Rules on damaging or removing natural resources, rules on littering, rules on harassing other users, these items are exactly what should be addressed in these rules.
There are a number of proposed items in these rules which should just not be here, should never have been considered. These rules represent a clear example of bureaucratic overreach in the management of public wildlands like this.
I will use two examples that clearly show where the university and OMKM have overstepped their mandate in these rules…
First is in attempting to impose hours of access to the summit of Mauna Kea. Section §20-26-38 (c) states that the hours of access be limited to those found in the Public Access Sub-Plan, or ½ hour after sunset to ½ hour before dawn.
What is so dangerous about being on the mauna at night? I have been on the summit through many nights photographing the stars and observatories at work, I have hiked the trails under moonlight. The risks are pretty much the same as during daylight hours. If one is worried about interference with the observatories that is neatly controlled by section §20-26-23 which prohibits such interference, no other rules are needed.
My second example is in prohibiting bicycles on the summit road. Section §20-26-30 (1) of the proposed rules specifically prohibits pedal powered two wheel vehicles above Halepōhaku on the summit road.
Why are these rules attempting to regulate bicycle traffic on a public roadway where such is otherwise permitted under state law? As I drive the summit road several times each week I know that bicycles are not unusual on this road, we see them regularly. We have even seen a unicycle make the summit.
No reason is given for prohibiting bicycle traffic, no justification provided for this prohibition. This prohibition does not appear in the public access sub-plan of the Mauna Kea Comprehensive Management Plan. It appears that the only reason officials at the university and OMKM placed this prohibition into the proposed rules is reasoning something like “we just do not want to deal it”.
There are number of other clear examples of regulatory excess in these rules… Regulating snow play, air toys, etc. In attempting to regulate these activities the university and OMKM have overstepped their mandate of the comprehensive management plan.
The MKCMP clearly states a goal that management will be minimal… “Ideally, management is accomplished at the lowest level of control that is effective, in ways that are least restrictive and intrusive.” (MKCMP Public Access Sub-Plan, Jan 2010, page 4-1). The proposed set of rules before us simply does not comply with that clearly stated policy.
It is interesting to compare these rules to the public access rules of other government agencies with similar safety and environmental issues. One might make particular note of the National Park Service rules for access to Hawaii Volcanoes National Park including the summit of Mauna Loa. These rules do not include any restriction of hours of access, the public is free to enter the park after dark to enjoy the opportunities presented by a dark sky or hiking by moonlight.
There are no restrictions on bicycles to be found in NPS rules as long as operated on a roadway or designated trail, indeed human powered transport is encouraged by the park with trails and facilities provided specifically for this use.
While the risks are essentially identical the National Park Service allows many activities the proposed Mauna Kea public access rules forbid. Why does the National Park Service allow these uses while the proposed Mauna Kea rules do not? The answer to this shows where OMKM has overstepped its basic mandate in the proposed public access rules.
Officials of the University of Hawaii and the Office of Mauna Kea Management need to realize that the land is ultimately public land, the public needs to be able to access that land even when there is some minor risk. The need to realize that there a many different reasons for accessing the land and that any set of rules must be written to allow any activity that does not harm the land. Rules cannot be written that foresee all possible land uses, and a such should be permissive rather than overly restrictive.
It appears that only one form of public user was actually considered in these rules, someone who drives up the mauna, takes a few photos, and leaves. Such a person would usually be a tourist, rather than a local resident. This simplistic vision does not consider the myriad of reasons one may come to Mauna Kea… Artists, photographers, hikers, religious practitioners, amateur astronomers, hunters, or simply a local family that wants to play in the snow. All of these users may all to easily run afoul of these rules while doing nothing wrong, nothing that would actually harm the resources.
It is not the job of management officials to make access to wild and natural areas completely safe, that members of the public need to able to make their own assessment of risk based on their own activities, not a risk averse official writing one-size-fits-all rules. As long as the activity does no harm to the land or resources on that land, as long as that activity is not affecting another user, that activity should be allowed.
All rules that exceed the limited goals of protection of the land and resources should be removed before these proposed rules are considered for adoption. Many complete sections should be simply deleted. Doing so would solve nearly every objection raised by the public against these and previous versions of the proposed rules. The remaining rules and enforcement options are more than sufficient to meet the mandate of the Mauna Kea Comprehensive Management Plan.
Sections §20-26-28, §20-26-29, §20-26-30, §20-26-35, §20-26-36, §20-26-38, and §20-26-39 should be removed entirely.
Short version… The role of the University of Hawaii and the Office of Mauna Kea Management is to protect and preserve the lands and resources under their care, it is not to regulate public activity that does not fit their limited version. As long as the activity does no harm to the land or resources on the land, as long as the activity has no significant impact on other authorized users, UH and OMKM have no business regulating it.
Thank you for considering my input on the proposed rules,
Andrew Cooper
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