A five-year legal battle by 172 service members and their families over pesticide exposure at Marine Corps Base Hawaii in Kaneohe appears to have hit a dead end.
They had sued the private landlord that operates housing at the military base, Ohana Military Communities, a firm owned by a Texas-based firm, The Hunt Cos., alleging the company failed to disclose harmful levels of pesticides to tenants before they moved in.
Attorneys for Ohana had repeatedly moved to have the lawsuits tossed out, saying that the homes were safe and that there was no evidence that the families had been exposed to harmful levels of pesticides. They said contaminated soil had been properly removed and contained.
U.S. District Court Judge Leslie Kobayashi has issued a ruling that appears to stop a pesticide-disclosure lawsuit in its tracks.
U.S. District Court — Hawaii
In a ruling issued Thursday, U.S. District Court Judge Leslie Kobayashi ruled for Ohana, saying that she was granting the company’s motion for summary judgment on the most significant remaining claims because the plaintiffs had failed to provide enough admissible evidence to prove their case.
At issue is whether Ohana should have told military families renting homes at Kaneohe of the known contamination by pesticides at the base.
Kobayashi, appointed by President Barack Obama in 2010, wrote that “even looking at the evidence in the light most favorable to Plaintiffs” did not show that pesticides at the Kaneohe base were unsafe or required a warning.
She wrote that the plaintiffs had failed to prove a number of claims, including breach of contract or whether the defendants had broken Hawaii landlord-tenant laws or inflicted emotional distress upon tenants.
The surviving issue is whether the construction dust at the base had posed a nuisance. Kobayashi said she would hold a hearing on that issue on Sept. 6.
The two defendants in the case are Ohana and Forest City Residential Management, the private company that operated the housing before Hunt took over. The two companies took control of military housing after the Military Housing Privatization Initiative permitted more than 200,000 housing units previously owned and operated by the military to be transferred to for-profit corporations.
Neither of the lead attorneys in the case, Randall Whattoff, who represented Ohana, or Kyle Smith, who represented the plaintiffs, were willing to discuss the ruling on the record Thursday, both saying they needed to discuss it with their clients. The case can be appealed to the 9th U.S. Circuit Court of Appeals.
Marine Corps Base Hawaii in Kaneohe has more than 2,200 housing units, all operated by a private company, Ohana Military Communities.
Cory Lum/Civil Beat
The situation at Kaneohe Marine Corps Base first drew public attention in 2006, when an environmental consultant, Walter Chun, said the Navy, which still controlled housing at Kaneohe at the time, was failing to properly handle pesticide-contaminated soil on base.
A wide array of toxic pesticides that were used extensively by the military after World War II to combat termite infestation was used at the Kaneohe base. They include compounds such as chlordane, which was banned by the Environmental Protection Agency in 1988 because it causes cancer and other human illnesses. The chemicals break down in the soil very slowly and even small amounts can lodge in the body tissue of humans and animals.
At that time, Hawaii Department of Health officials said they did not believe the Navy’s procedures for handling the risk assessment and cleanup of chlordane-contaminated soil were adequate.
Chun continued to prod state health officials to investigate. But by 2014, according to court filings, state officials had decided there was little reason for concern.
State officials considered it “extremely improbable that residents’ health concerns are linked to exposure to potential low-level residual pesticides in soil,” wrote Fenix Grange, supervisor of the state’s hazard evaluation and emergency response office.
“Considering the extreme improbability of this relationship, we do not believe that an extensive commitment of time and resources required for a formal health study would be justified,” he wrote.
Meanwhile, during those years, military wives at the Kaneohe base began sharing stories on social media about health problems their families had developed and started speculating about whether pesticides left behind in the soil on the base could be the reason. They circulated an informal survey of 600 families that they said showed a high incidence of cancer, respiratory problems and liver and kidney disease.
The first case was filed in April 2014 as a class-action lawsuit in state court but it was soon transferred to federal court. The attorneys for the families lost their battle for certification as a class-action lawsuit in late 2015, and the case broke into 10 separate lawsuits.
The first of the suits, named for lead plaintiff Cara Barber, was settled in February 2016. It flared back into the news in 2018 when Ohana sued Barber for alleged violations of the confidentiality provisions of the settlement. Barber had become an outspoken anti-pesticides activist who operated a popular Facebook page that talked about what she believed to be health hazards at the base. Information that had been posted was removed from the internet. That case settled in March.
According to court filings in the Lake lawsuit, service members alleged that while they lived on base at Kaneohe they developed asthma, disabling ailments, nervous system disorders and, in one case, that their children became autistic.
“Long-term exposure to pesticides will cause long-term health effects,” said Kenneth Lake, the lead plaintiff in the case, a retired Navy lieutenant whose family, including his wife and three children, lived on base for more than four years. “They should have told us prior to signing a lease.”
In depositions and interrogatories, the families described construction dust coating the windows, settling on floors and covering their children’s outdoor toys as Ohana built hundreds of houses nearby.
Ryan Wilson said he developed respiratory problems and was diagnosed with asthma. Doctors found polyps growing in his nose and sinuses, which had to be surgically removed. He was medically discharged from the military and was declared disabled, he wrote.
The Moseley family, a married couple and 7-month-old infant, were placed in one of the few houses occupied in the middle of the demolition zone. They described their house as encrusted with dust, grime and grit.
Timothy Moseley said his infant son began losing hair in chunks, had breathing problems and began showing signs of autism. His wife had a second baby, another boy, who was diagnosed as autistic. They had three more children, a daughter and two sons, all whom have been diagnosed with mild autism.
“We’ve had genetic testing done and it’s not genetic,” Moseley said. “The doctors have told us it was probably environmental factors so of course I wonder what happened. Was it dust we were all exposed to? Chemicals in the dust? I wonder every single day if living at MCBH caused this.”
Stay Up To Date On The Coronavirus And Other Hawaii Issues
Support local journalism
Studies have shown that when local journalism disappears, government financing costs go up, fewer people run for public office, elected officials become less responsive to their constituents, and voter turnout decreases. Our small nonprofit newsroom works hard every day to present local news in a deep and transparent way, without fear or favor. We also rely on donations from readers like you to keep us afloat. The more support we receive; the stronger, more sustainable our journalism becomes; the more accountable we are to you. Please consider supporting our Honolulu Civil Beat with a tax-deductible gift.
Kirstin Downey was a reporter for Honolulu Civil Beat. A former Washington Post reporter and author of several books, she splits her time between Hawaii and Washington, D.C. You can reach her by email at firstname.lastname@example.org