HONOLULU (CN) — A federal judge heard on Friday a pair of motions to dismiss two cases involving the U.S. Navy's 2021 jet fuel leak that infiltrated a Honolulu military base's water system.
U.S. District Judge Leslie Kobayashi heard from attorneys in two cases challenging the contamination from two angles. Wai Ola Alliance, an environmental nonprofit, sued the government in June 2022 claiming the Navy had compromised the ecosystem when it discharged petroleum jet fuel into Pearl Harbor and lands near its Red Hill Bulk Fuel Storage Facility.
Another suit, brought in September 2022 by the families of military members who had lived along the Navy's water line, charged the Navy not only with the contamination and subsequent health issues, but also accuse the government of telling its doctors to downplay the medical effects and to deny proper treatment.
In both cases, the government pushed on Friday to dismiss, citing various jurisdictional issues and highlighting the Navy’s current efforts to shut down the Red Hill facility.
Responding to the complaint from the military families, the government argued claims the military failed to test contaminated water samples and that it did not remediate the families’ homes should be dismissed.
Marianne Kies, a Department of Justice attorney, said there was no federal directive requiring the Navy to either test water samples or remediate homes. Kies also emphasized the complex combination of policy and agency action that the Navy needed to juggle in handling the water crisis at the same time Covid-19 pandemic protocols were in full swing.
“The plaintiff’s allegations are that the Navy should have done things differently. But the Federal Tort Claims Act discretionary function exception exists to prevent the judicial second-guessing that plaintiff’s position requires,” Kies said.
Honolulu attorney Lyle Hosoda argued for the plaintiffs, saying the context of the Navy’s response shouldn’t disqualify it from analysis of each action taken, and if those actions were ultimately negligent.
“There is a discretion up to a point, but when they undertake to act, and this is where the Good Samaritan rule comes in as well, they must act to meet the standard of care,” he said.
Kobayashi had dismissed a failure to warn element from the families’ negligence claims in January that referred to the lessor/lessee relationship between the Navy and military families living on base.
In Wai Ola’s case, which emphasizes the environmental impact of the leak, the government asked Kobayashi to defer primary jurisdiction to the Hawaii Department of Health and the U.S. Environmental Protection Agency, which are currently leading the ongoing defueling and environmental remediation process.
Since the cases were filed in 2022, the Navy has made strides to shut down and defuel the facility. At the end of 2023, a Red Hill task force reported the facility had been almost entirely defueled and attorneys at Friday’s hearings indicated that shutdown was imminent.
Attorneys for the government worried at the Friday hearing that Wai Ola’s case would conflict with those current efforts and would interfere with the efficiency and practicality of state and federal agencies’ work, which the attorneys characterized as “extremely complex.”
“They have essentially asked the court to become a third project manager … and they have provided no justification for doing so,” Lucy Brown, attorney for the government said. “The potential for conflict here is extremely high under these circumstances.”
Department of Justice attorney Paul Cirino also added that Hawaii state law should be predominant in this case because much of Wai Ola’s contamination fears involve Honolulu’s aquifer, which lies directly below the Red Hill facility and supplies water to a majority of the island of Oahu.
Representing the alliance and its members — who indicated misgivings about the Department of Health and emphasized the necessity of citizen oversight in their original complaint — Daniel Cooper of San Francisco’s Sycamore Law, echoed Kobayashi’s question and acknowledged the Navy’s efforts so far.
“But that’s not comprehensive. It doesn’t deal with the resolution at the site, the ultimate soil cleanup, the aquifer and previous spills. Our case would address things not reached by DOH … I think we’re sophisticated enough to avoid the kind of mass confusion the Navy seems to think would result from proceeding with this case.”
Brown countered that Wai Ola had never specified any of the purported holes in the Navy’s current plans.
Kobayashi did not indicate when she might rule in either case, though she said she was inclined to deny both motions in each case before each hearing and may consider a stay in Wai Ola’s case.
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