- Special Projects
It’s been more than a year since the Hawaii Department of Health urged developer Forest City Residential Management to test the soil near homes on Marine Corps Base Hawaii on windward Oahu for possible pesticide contamination.
The soil sampling still hasn’t happened.
But 44 military families have filed five separate lawsuits against Forest City and its former subsidiary Ohana Military Communities, now owned by developer Hunt Companies, contending that the firms failed to disclose pesticide contamination near their homes.
Residents have raised concerns about health problems that they fear are linked to possible pesticide contamination of the surface soil surrounding their homes.
Forest City and Hunt Companies are pursuing their own case against Cara Barber, the wife of a Marine Corps veteran who lived on the Kaneohe base for several years and was the lead plaintiff in the initial lawsuit against Forest City in 2014.
After a magistrate judge recommended against certifying her case as a class action, Barber settled the case in February for undisclosed terms. In May, Forest City and Hunt filed a motion for preliminary injunction against her for allegedly violating the confidentiality provision of her settlement agreement and defaming the companies on Facebook and her blog.
The settlement is sealed and relevant sections of related court documents have been redacted. But the developers provided thousands of pages of exhibits, including emails and social media posts, to back up their argument.
“While Mrs. Barber has long made a practice of posting exaggerated and disingenuous statements to social media, her new campaign is dangerously untrue and misleading,” the developers said.
They contended that Barber coordinated a “smear campaign” with her former attorneys to “intentionally spread false information and fear related to MCBH housing in an attempt to drive new clients to Ms. Barber’s former attorneys.”
Judge Helen Gillmor ruled partially in the companies’ favor Aug. 26. Her order is sealed, but is summarized in a publicly available mediation questionnaire, and in Barber’s appeal filed with the Ninth Circuit Court.
Forest City and Hunt Companies have also sought to prevent Barber’s attorneys from Smith Law and Revere & Associates from representing Barber “and all other current and former residents of military housing who have submitted mediation demands against Defendants since May 1, 2016.”
The companies said more than 100 families contacted them seeking mediation after May 1.
So far, 44 families have filed lawsuits, and attorney Kyle Smith said there are more to come.
But he may not get to represent them. Forest City and Hunt, represented by attorneys from Goodsill Anderson Quinn & Stifel and Cox Fricke filed a motion on Oct. 28 to disqualify Barber’s attorneys, contending that they have conflicts of interest and violated professional rules of conduct by allegedly soliciting clients.
As evidence, the companies point to a letter from Smith and attorney Terry Revere to many MCBH residents explaining the Barber case had settled and stating, “We are writing to inform you that you should contact an attorney if you wish to pursue your potential legal claims against Forest City.”
The letter also says that families who lived in Marine Corps Base Hawaii from 2006 to 2014 may have valid legal claims for the return of their Basic Housing Allowance, a subsidy provided by the Department of Defense.
In a court filing, Smith and Revere called the companies’ efforts “onerous blackmail tactics,” noting that the companies offered to drop their case against Barber if her attorneys agreed not to represent any additional families who have raised concerns since May 1.
“(Ohana Military Communities’) motion not only seeks to stifle speech by Mrs. Barber related to MCBH regardless of content, but OMC intentionally wields its motion as a sword to prevent new claims by other MCBH families,” they wrote.
There hasn’t yet been a ruling on the motion to disqualify Smith and Revere, according to federal court records available online.
The concerns about potential pesticide contamination at Marine Corps Base Hawaii date back to 2006.
That’s when Ohana Military Communities, at the time a subsidiary of Forest City, took over housing on the base. In the process of the demolishing some homes and building others, the developer discovered the soil contained high levels of organochlorine pesticides left over from termite treatments.
Forest City completed a state-approved pesticide management plan, which permitted higher levels of carcinogenic pesticides than the Environmental Protection Agency generally recommends to remain in the surface soil because it was assumed military families would not live on the base longer than six years.
In the meantime, residents were reporting problems with asthma, cancer and birth defects. Dr. Walter Chun, an environmental hazard consultant who worked for the developer that built the original homes on Marine Corps Base Hawaii, created a map of the illnesses and urged the state repeatedly to take action on the pesticide concerns.
Hawaii Department of Health remedial project manager Eric Sadoyama requested soil sampling from Forest City in September 2015 after reviewing Chun’s anecdotal data of health concerns.
He didn’t hear back until May 2016. Since then, he’s been working with Ohana Military Communities to develop a soil sampling plan and hopes to receive one by the end of the month.
Representatives of Forest City and Hunt Companies declined to comment for this report, citing the pending litigation.
Barber similarly declined to comment on the lawsuit against her, but said she’s still very concerned about the lack of soil sampling.
“I’m hoping and praying that the Department of Health will be able to get testing done,” Barber said.
Sadoyama said even if the soil sampling plan is received and approved this month, it could still take several months for the testing to be conducted and analyzed and for a report to be written.
That means it might be well into 2017 before families like Barber’s get answers to the long-held concerns.
According to Sadoyama, the Department of Health believes it has the jurisdiction to require Ohana Military Communities to conduct soil sampling.
But he said the Department of Defense and Forest City have previously disputed that jurisdiction, and the agency hasn’t fought the issue, choosing instead to “strongly recommend” that the developer conduct testing and wait for voluntarily compliance.
Sadoyama said the agency’s reluctance to set a timeline for the developer to comply is due to the lack of evidence that there is pesticide contamination.
“If we did have clear evidence that something is actually wrong, we would move on it,” he said. Still, he said the agency has continued to urge the developer to conduct soil sampling because so many residents have reported health concerns.
“We want to resolve this issue because we don’t want to have this lingering question out there,” Sadoyama said. “As far as we can tell, we don’t have any evidence that suggests that something was done wrong. We just don’t have enough evidence to know for sure it was done right.”
Below are the four lawsuits recently filed against Forest City and Ohana Military Communities: