A set of nine lawsuits alleging that soil contamination at Marine Corps Base Hawaii in Kaneohe was undisclosed to service families, some of whom became ill, is headed back to the place where the case began eight years ago, in state court in Honolulu.
The U.S. Supreme Court announced Monday that it would not hear the appeal brought by the military landlord. The High Court’s decision not to grant cert in the case represents a defeat for the landlord, a Texas-based real estate company, Hunt Cos., which operates base housing in Hawaii under the name of Ohana Military Communities.
Ohana had petitioned for Supreme Court review of a set of rulings by the U.S Court of Appeals for the 9th Circuit, which found that U.S. District Judge Leslie Kobayashi had improperly dismissed almost all the claims brought by the service members and their families.
Kobayashi had kept the case in federal court when state court was the proper venue from the beginning, according to the 9th Circuit judges.
The disputes have been “administratively stayed” during the appeal process and will now head to state court for trial or settlement.
About 86 families have remained in the case as plaintiffs, with their claims divided among the nine lawsuits. They are seeking financial damages as renters who say they were misled.
“We’re super, super happy about it, happy for everybody,” said Kyle Smith, the attorney who represents the families. “It means they are done. There is no other challenge they can bring. These cases will proceed in state court under Hawaii law with a state judge.”
Kenneth Lake, the lead plaintiff in one of the cases, was jubilant Monday when he learned the Supreme Court had effectively ruled in his favor by declining to give the case further review.
“It’s fabulous news,” said Lake, who has retired from the Navy and now works in the private sector in Florida. He said he pursued the case for more than a decade because he was angry about how the military handled the problem. He said he and his three children all suffer continuing respiratory problems they developed while living on base.
“It burns me up how the military treated my family,” Lake said. “They were supposed to take care of me and my family. I signed up to fight for my country and I feel like I was betrayed.”
Randall Whattoff, the lead attorney for Ohana, did not respond to requests for comment.
He has repeatedly disputed the families’ accounts, saying that there is no proof that there were dangerous contaminants at Kaneohe. Court records indicate that the real estate firm spent a substantial sum remediating soil contamination. Its environmental consultants testified that they had done so successfully. The company has fought the lawsuits aggressively in the courts.
Petitioning to the Supreme Court was viewed as a long shot because the Supreme Court takes only a small handful of cases each year to review.
Kobayashi also declined a request for comment.
Hundreds of service members at Kaneohe have alleged they reported strange health problems to property managers at Ohana but were told their concerns were unfounded. Their requests to move to other housing were denied, they say. They also allege that information about extensive soil contamination by pesticides over the years was withheld from them.
Since 2014, Civil Beat has chronicled their claims. The families lived on the base between about 2006 and 2012, when much of the older housing there was being demolished and replaced with new suburban-style developments. Military housing was privatized in the 1990s, with private companies like Ohana becoming the landlords on base instead of military officers.
The families at Kaneohe believe they were exposed to toxic pesticides that were used extensively by the military between the 1940s and 1970s to combat termite infestation in wooden structures.
These substances included chlordane, a chemical with little or no identifying smell that was commonly used on the Kaneohe base and other military installations. Chlordane was banned by the Environmental Protection Agency in 1988 because it causes cancer, damage to the nervous system and other health problems.
The soil problems at the Kaneohe Marine Corps base first drew public attention in 2006, when a Hawaii-based environmental consultant, Walter Chun, alleged that the Navy was failing to properly handle pesticide-contaminated soil on base. Initially state health department officials said there had been a contamination problem, but officials later changed their opinion and declined to take further action.
Families have alleged they and their children suffered long-term respiratory and neurological problems after they were exposed to swirling dust from the construction sites.
The first lawsuit was filed in April 2014 as a class-action case in state court but was soon transferred to federal court. The service members lost the battle for certification as a class-action lawsuit and the case was divided into 10 separate lawsuits. The first of them, named for lead plaintiff Cara Barber, settled in 2018.
The second lawsuit of the remaining nine was assigned to Kobayashi. In a hearing on July 19, 2019, she said there appeared to be “no admissible evidence” establishing as fact that pesticide levels were severe enough to “create a duty to warn.” She referred to the coating of red dust as merely a “nuisance” that “caused them, you know, problems in terms of housekeeping.”
In August 2019, she granted the landlord’s motion for summary judgment on the most significant claims, saying the plaintiffs had failed to provide enough admissible evidence to prove their case. Attorneys for the families appealed her decision.
In September, a three-judge panel in the 9th Circuit sided with the families. The judges ruled unanimously that residents who live on military bases have the right to sue private companies who are their landlords, a decision that could have broader ramifications for other lawsuits in Hawaii as well.
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Supreme Court Declines To Hear Kaneohe Soil Contamination Case - Honolulu Civil Beat
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