published: November 08, 2016
HONOLULU (Tribune News Service — A lawsuit alleging that military families were not informed of high levels of ground contamination before they moved into their Kaneohe Marine Corps Base housing has been settled.
But even though the litigation raised public-safety questions for residents of a roughly 2,500-unit housing development on federal land and was filed against a co-defendant partly owned by the Navy, the settlement is secret.
Taxpayers aren’t privy to the terms, including whether federal dollars will be part of any possible payout.
“If it involves taxpayer dollars, I think taxpayers should have the right to know how (those dollars) are being spent,” said Neil Gordon, an investigator for the Washington, D.C.-based Project on Government Oversight, which advocates for transparency in government operations.
More than two dozen families have filed at least four lawsuits alleging that the housing developer that took over the Marine Corps Base Hawaii residential project in 2006 failed to disclose widespread pesticide contamination in the ground before the families started leasing units there. The lawsuits say the families subsequently were unknowingly exposed to elevated levels of risk for cancer and other health problems.
The defendants, in court documents, denied any wrongdoing, saying they took remedial steps to treat the ground to address the presence of pesticide chemicals that were widely used for termite treatment before the federal government banned the compounds, such as chlordane, in the late 1980s.
The remedial steps, which were undertaken around the 1,300 homes the development team built, included removing 2 feet of topsoil and replacing it with clean fill, according to the documents.
The first of the lawsuits, which was filed by four families in 2014, was settled in February.
But the public is not privy to details of the settlement because the agreement contains a confidentiality provision prohibiting both sides from disclosing terms, including any financial details, court documents show.
Confidentiality clauses are common in settlements of civil litigation involving private parties, but this case blurs the line between private and public interests.
The housing complex has been used by hundreds of military families since the defendants took over the project in 2006. Though the land is owned by the federal government, the housing units are owned and operated by a public-private venture, Ohana Military Communities, which is a limited-liability company co-owned by the Navy and a private developer.
Ownership of the housing will revert to the Navy when a 50-year ground lease expires, according to court documents.
Ohana Military was formed as part of a federal initiative to encourage public-private ventures to address a shortage of and poor conditions at military housing nationally.
The other defendant is Forest City Residential Management, another limited-liability company involved with the Kaneohe project.
Randall Whattoff, one of the attorneys who represents the defendants, said he could not comment on the settlement agreement because of the confidentiality provision and because litigation is still pending. He said he could not even address whether any federal money would be part of a settlement.
The plaintiffs’ attorneys, Terry Revere and Kyle Smith, could not be reached for comment.
A Marine spokeswoman did not respond to a request for comment last week.
In court documents related to the case, attorneys for the defendants said a key provision in the settlement agreement was that terms remain confidential and that their clients would not have agreed to settle without such a requirement.
The defendants have accused one of the plaintiffs, Cara Barber, of violating that requirement through blog and Facebook posts — a charge Barber disputed in court documents.
Gordon, the Project on Government Oversight investigator, told the Honolulu Star-Advertiser that legislation has been unsuccessfully introduced in the U.S. Senate since the early 1990s that would make the sealing of court documents more difficult in civil litigation relevant to public health and safety.
One measure would have required the court to balance the public’s health and safety interests against a legitimate privacy interest before deciding whether a settlement agreement or other documents should be sealed.
“Similar measures have been introduced for the past 20-plus years but never seem to go anywhere,” Gordon said in an email to the Star-Advertiser.
©2016 The Honolulu Star-Advertiser-