Military base pesticide exposure case belongs to state court – 9th Circ.
- Law firms
- Federal and state governments share concurrent jurisdiction over Navy base in Hawaii, court finds
- The decision is a victory for military families who have rented accommodation on base
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(Reuters) – A federal appeals court ruled on Monday that military families who allege they were kept in the dark about pesticide contamination at a Hawaii Navy base can pursue their claims in a court of law. State, reigniting their legal action against companies that have rented them homes on the base.
In a victory for the families, a unanimous panel of the 9th U.S. Court of Appeals overturned a lower court ruling that rejected their offer to remand the case. The panel ruled that under the law that admitted Hawaii as a U.S. state, Honolulu shared jurisdiction with the federal government over the Hawaii Marine Corps (MCBH) base on the island of Oahu.
Kyle Smith, who represents the tenants, including Kenneth Lake, said that “we are pleased that the courts of the State of Hawaii have the opportunity to adjudicate on these important questions of the law of the State of Hawaii” .
Randall Whattoff of Cox Fricke, who represents real estate firm Ohana Military Communities (OMC) LLC and co-defendant Forest City Residential Management Inc, said OMC disagreed “with the ruling that the federal courts do not have the jurisdiction to review matters arising at a Marine Corps facility. ” The company intends to seek a full review of the decision, he added.
Lake and other family members of the military who rented homes from the companies sued them in Hawaii state court in 2016. The plaintiffs alleged that the companies, which they said built and jointly operated the base’s private accommodation, did not inform their tenants that MCBH’s soil was contaminated with chlordane and other pesticides. The contamination exposed families to dangerous conditions, including higher cancer risks, they say.
Chlordane was applied to the foundations of houses to control termites. It was banned in 1988.
The WTO has confirmed the pesticide contamination and has developed a plan to mitigate its risks, according to the complaint. Mitigation measures included the development of maps detailing where soils contaminated with pesticides had been found, and requiring that no “visible dust” be emitted during demolition and construction activities, he said.
The companies in 2016 withdrew the lawsuit in federal court. There, U.S. District Judge Leslie Kobayashi, in several rulings, rejected the residents’ request to send it to state court and dismissed all but one of their 11 claims. They ranged from breach of contract to violations of the state’s landlord-tenant code. The plaintiffs appealed in 2019.
Writing for the 9th Circuit panel, U.S. Circuit Judge Ryan Nelson wrote that under the Admission Act, which officially made Hawaii the 50th state, the United States and Hawaii have jurisdiction ” concurrent ”on the military base, with one exception: the areas that Washington has designated as critical fall under its exclusive jurisdiction.
“We have not found any evidence that MCBH is such a designated ‘critical area’,” Nelson wrote.
“Hawaii’s concurrent jurisdiction means that the state law governing plaintiffs’ claims is still the law of Hawaii – not federal law,” he wrote.
The judge, joined by U.S. Circuit Senior Judge Richard Clifton and U.S. Circuit Judge Daniel Collins, disagreed with the lower court’s finding that federal jurisdiction prevailed, despite concurrent jurisdiction, because the dispute involved “substantial federal interests”.
And the panel rejected the companies’ argument that the case belonged to a federal court under the Federal Officers Dismissal Act because OMC acted as a federal officer in providing housing services to the request of the Navy.
The case is Lake v. Ohana Military Communities, 9th US Circuit Court of Appeals, # 19-17340.
For Kenneth Lake et al: Kyle Smith of the law firm of Kyle Smith
For the military communities of Ohana et al: Randall Whattoff of Cox Fricke