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Even as water contamination in military housing at Pearl Harbor draws widespread condemnation, another case — this one involving contaminated soil on the windward side of the island — is coming back into the public eye.

A set of appellate rulings by the 9th U.S. Circuit Court of Appeals has brought a Kaneohe military base lawsuit back to life after a federal court judge in Honolulu in 2019 dismissed almost all the claims. The dispute may soon head for trial in a state court.

At the center is a Texas-based real estate company, , which operates base housing in Hawaii under the name of . Hunt is also a landlord at Joint Base Pearl Harbor-Hickam, controlling five housing areas––�ٳ󲹳��� fuel tank water contamination. Hunt is the nation’s largest provider of military housing.

Correction: In an earlier version of this story, Hunt Cos., operating as Ohana Military Communities, was described as the landlord of the Red Hill housing area. Ohana is the landlord of five other housing developments affected by Red Hill fuel contamination but is not the landlord at Red Hill.

Service members at in Kaneohe have said they reported problems to property managers but were brushed off and told their concerns were unfounded. They allege in their lawsuit that they were not adequately informed of the risks of living on base.

The Kaneohe case comes amid a raft of similar problems being reported on military bases around the country. A federal program in which military-operated housing was  was initiated in 1996. It has subsequently resulted in a nationwide blizzard of reports about bad conditions, including environmental hazards, lead paint, malfunctioning plumbing and black mold, as reported in Civil Beat in July 2019 and August 2019 and in an . The Reuters stories reported how the private property managers reaped large profits by housing what was in many places a captive market of military families who wanted or needed to live on base.

Since 2014, Civil Beat has chronicled the claims of more than 170 service members and their families at Kaneohe who allege they suffered long-term health problems because Ohana failed to properly disclose that the dirt in the gardens and playgrounds was laced with residue from dangerous pesticides. 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.

Randall Whattoff, a Honolulu attorney representing Ohana Military Communities, disputed the plaintiffs’ accounts, which were given in court testimony, saying that there is no proof that there were dangerous contaminants at Kaneohe.

“There was no evidence of unsafe conditions at Marine Corps Base Hawaii,” Whattoff said in a written statement. 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.

In contrast, attorney Kyle Smith, who represents the families, said that the private landlords were told by the U.S. Navy that there was “widespread pesticide contamination” at the base, with “incredibly high levels” of toxins at various points. He said testimony showed the company mixed clean and contaminated soils during the remediation and failed to thoroughly solve the problem. In addition, Smith said, it didn’t tell the tenants what it was doing.

What happened at Kaneohe happened at other bases in the tropics as well. Toxic pesticides were used extensively by the military after World War II and up through the Vietnam War to combat termite infestation in wooden structures. These substances included , a chemical with little or no identifying smell that was commonly used on the Kaneohe base and other military installations. Chlordane was  in 1988 because it causes cancer, damage to the nervous system and myriad 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.

It is not known precisely when military officials stopped using chlordane at Kaneohe.

Located on a peninsula that was  in the islands, the area was known to Hawaiians as Moku Kapu, or , and was considered sacred. The land was taken by the U.S. military in 1918, converted into a major installation in 1939 and was attacked along with Pearl Harbor on Dec. 7, 1941. It now serves as a major training center for Navy and Marine operations in the Pacific. Today it houses more than 2,000 Marine families in 13 residential neighborhoods.

Life is convenient for service members there because the base contains day care centers, recreational facilities and other amenities. These were important features for families who filed the lawsuit because at the time of the problems almost all the men were repeatedly deployed in overseas combat and the men wanted their wives to have help and support when they were gone.

The soil problems at the Kaneohe Marine Corps base first  in 2006, when an environmental consultant, Walter Chun, said the Navy was failing to properly handle pesticide-contaminated soil on base. At that time, Hawaii Department of Health officials agreed that the Navy’s procedures had been inadequate to solve the problem. But by 2014, state health officials had changed their opinion and said there was no reason for concern, according to court filings.

During that period, however, military wives at Kaneohe began talking on social media about unusual health problems their families were experiencing, including asthma, neurological disorders and chronic fatigue. They grew angry, believing that they should have been warned about dangerous conditions on the base.

In addition to contaminated soil on the ground outside their homes, there was heavy construction underway during those years as new housing developments were built to replace houses that had been subject to repeated termite eradication spraying over more than 40 years. The work stirred up dust that blew through the air, coating residents’ walls, windows and even kitchen utensils. In depositions and interviews, military families recalled seeing swirling burgundy-red dirt everywhere, including on the playgrounds.

Tim and Ashley Moseley, both from Augusta, Georgia, were both 21 when they moved into their rental house at Kaneohe in 2008. They said they knew something was wrong when their 1-year-old son, Ashton, got sick. His hair began falling out in chunks and he was diagnosed with asthma and later with autism. The Moseleys had several more children while they lived on base and they were subsequently diagnosed with permanent neurological problems with no detectable genetic cause, they said in an interview.

Unfamiliar with life in Hawaii, the Moseleys and other families asked whether the dust that coated the walls of their home constituted a health hazard. Several said they were told by property managers that bad air was common in Hawaii, that many people suffered unusual and new ailments when they moved to the state and that the dust was volcanic ash.

“They assured me we were completely safe and that there was nothing to worry about,” Tim Moseley said. When they persisted with their questions, “they acted like we were whining or crazy or stupid,” his wife recalled.

Kenny and Crystal Lake, who moved there in 2012, said their yellow Labrador Foley starting scratching frantically soon after they arrived and that his fur began falling out in patches. Their young son Colin, a soccer enthusiast, began clutching at his chest one day while he was playing. They took him to a doctor, where he failed a pulmonary function test. So did his younger brother, they said. Kenny said his health also deteriorated and that he has never fully recovered.

Many of the residents asked to be relocated but Ohana denied most of their requests. Finally a small group made the decision to take their complaints to court. As time went on, more people joined the lawsuit.

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 broken into 10 separate lawsuits. The first of them, named for lead plaintiff Cara Barber, settled in 2018.

The second lawsuit then moved through the courts, and was assigned to U.S. District Court Judge Leslie Kobayashi. From the beginning she seemed skeptical of the families’ claims. In a , 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.”

She compared the pesticides to microplastics and said that if the city were forced to warn people about microplastics, it might have to shut down the beach. Later she compared the problems service members faced in dealing with potentially contaminated soil to hotel guests renting an oceanfront property and finding that they weren’t next to the ocean, but only got an ocean view.

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.

She wrote that the evidence did not show that the pesticides at the Kaneohe base were unsafe, and that the plaintiffs had failed to prove their claims of breach of contract, whether the defendants had broken Hawaii landlord-tenant laws or inflicted emotional distress upon tenants. She left only the claim that the high levels of dust constituted a “nuisance.”

The families had to decide whether to appeal the decision.

Kobayashi’s ruling had been a significant and crushing defeat. Attorneys for Ohana informed them that if they appealed and lost, they would be pursued for repayment of litigation costs. Whattoff, Ohana’s attorney, entered hefty bills into the court record: $400 in filing fees, $2,549 for photocopies, $10,000 for preparing deposition manuscripts, $128,043 in fees to expert consultants and $647,222 in attorneys’ fees. The families were told that they could expect to pay at least $150,000 if they appealed and lost, and they were compelled to promise to pay.

“Judge Kobayashi was so against our case,” Crystal Lake said in an interview. “We thought we would lose and nobody would hear us and we would accept all that financial risk and liability.”

But her husband Kenny said they felt the cause was bigger than themselves.

“We decided it wasn’t just about our families,” he said. “It was families that would continue to be affected. If we dropped out there’s no one there to continue to fight and families that come to Hawaii would continue to be affected. The Department of the Navy should let service members know what they are getting into prior to taking orders. It’s their job to ensure the safety of service members and their families.”

Only two plaintiffs dropped out.

This wasn’t the only time that Ohana’s attorneys engaged in such legal tactics against the plaintiffs to discourage their claims. Cara Barber, the first to sue, had become a social media crusader, raising questions about pesticide and chemical contamination on military bases, according to a 2018 article in Civil Beat. Ohana’s attorneys said she was injuring the company’s reputation and they tried to void the settlement and also filed a defamation lawsuit against her. She won an appeal in the 9th Circuit.

This kind of legal action is controversial because it can inhibit open discussion of issues. The lawsuits eventually settled but Barber retreated from public view and stopped posting about problems on military bases.

In September, a three-judge panel in the 9th Circuit threw out Kobayashi’s ruling that had stripped away the plaintiff’s claims, ordering the case back into state court. The judges commiserated with the families and 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.

The three judges unanimously found that Judge Kobayashi had made mistakes, most notably by asserting federal jurisdiction and trying the case in federal court when it was more appropriately a matter of state law.

They suggested Judge Kobayashi had stretched the law by “finding a novel ground for subject matter jurisdiction,” and that she had attempted to create a “new rule,” one in which federal jurisdiction exists in any case where federally owned land is involved.

At in the case in February, Judge Richard Clifton, a President George W. Bush appointee and formerly an attorney in private practice in Hawaii, said that the legal issue was simple — that people came to rent a property but a material defect had not been disclosed to them — and that the case was essentially a landlord-tenant dispute that should be adjudicated in state court.

The judges also wondered aloud why, in a case deserving federal jurisdiction, military officials were not litigants or participants.

Whatoff told the judges that he believed there could be dire results if it became possible to sue private landlords operating on military land.

“It puts at issue the entire housing portfolio for that military base,” he said, adding that maintaining federal jurisdiction was important for national security.

Whattoff said the military had approved the lease language and handbook disclosures that the lawsuit had claimed were insufficient and so the military was thoroughly involved.

Last week the 9th Circuit judges also denied an en banc review, involving all members of the appeals court, which leaves a Supreme Court appeal by the company and its lawyers as the only remaining option.

The military families were jubilant at the news last week.

“I feel so vindicated. I’m ecstatic,” Crystal Lake said.

“It was great news getting the ruling and the latest ruling that it would stick,” Tim Moseley said. “I was just thrilled. It’s amazing.”

In a written statement to Civil Beat, Whattoff said that the landlord did in fact intend to appeal to the U.S. Supreme Court:

“Ohana Military Communities respectfully disagrees with the Ninth Circuit’s determination that the federal courts lack jurisdiction to consider matters occurring on a Marine Corps facility and air station, and Ohana intends to seek review of the opinion. This opinion was based purely on jurisdictional grounds and not the merits.”

However, given how few appeals the high court takes each year, this would be a long shot.

Kobayashi and Lydia Robertson, spokeswoman for Ohana Navy Communities, did not respond to requests for comment.

Smith, the attorney for the military families, who has been representing them for more than eight years, said that he was pleased with the 9th Circuit’s ruling and hopes it will allow the case to move ahead in a different forum.

“We want to get this case before a Hawaii jury and a Hawaii judge that applies Hawaii law,” he said. “The crux of the case is consumer protection. Is this how Hawaii companies can treat people in Hawaii?”