Lahaina fire lawsuits hamstring release of information, apologies

by Grassroot Institute of Hawaii, September 22, 2023

As government officials look to rebuild in the aftermath of the Lahaina fire, Joe Kent, executive vice president of the Grassroot Institute of Hawaii, said protecting landowners’ property rights should be their top priority. 

Kent told radio host Rick Hamada on NewsRadio 830 KHVH last week that “everyone got nervous” when Gov. Josh Green right after the fires made what now seems to have been “off-the-cuff” comments in favor of a property sale moratorium and ambitious redevelopment plans that would have trampled on peoples’ property rights. 

But since then, he said, “I’ve noticed that Gov. Green has really tried to — at the beginning of every speech he talks about in Lahaina — say that, ‘We’re going to let Lahaina residents rebuild Lahaina.’ And so, that’s nice that he’s saying it, but it’s too bad that the other message got kind of pushed into people’s heads.”

Kent also discussed the challenges posed by numerous pending lawsuits involving Maui County, Hawaiian Electric Co. and surrounding property owners that are not only preventing the release of information about the tragedy — but also delaying much-needed official apologies that could help the community heal. 

“Journalists were recently asking [the governor] about exactly that,” Kent said. “And he sort of admitted that, ‘Yes, it’d be nice if we could actually get some healing and apologies out there, but the legal natures of this make that hard to do.’ … So, it’s just too bad.”

Switching gears, Kent also talked about how the Honolulu rail is still suffering low ridership even after students returned to school — which rail officials previously suggested would boost ridership. 

According to data obtained by the Institute through an open records request, daily rail ridership peaked at 4,312 during the first week of official operations and was down to around only 3,000 in mid-August — further inflating the Institute’s estimated rail operating cost of $54 per passenger, which was based on the larger number.

“Why are we running these trains for so long at such an expensive … in such an expensive way?” Kent asked. “If we’re trying to save costs, wouldn’t it be better to save the money and put it towards the rest of the construction?”

TRANSCRIPT

9-14-23 Joe Kent with host Rick Hamada on NewsRadio 830 KHVH

Rick Hamada: And as a matter of fact — it’s interesting — if we were on Instagram, you’d be able to see Joe. This is The Cure: one of your favorite groups. As a music man, probably dug their stuff. 

Joe Kent: I love them, but I’m more of a Beatles guy, actually. Maybe I’m a little older than people think. [laughs] 

Hamada: Ah, no, no, no. No, that’s all right. Favorite Beatles song, if all you could do is have one?

Kent: Martha. Martha. 

[Singing] Martha, my dear … 

Hamada: Oh, no kidding. 

Kent: Yeah, It’s unknown, kind of. But yeah. 

Hamada: Oh man, I love it. Have you ever seen one of the Beatles shows in Vegas?

Kent: I saw Paul McCartney actually play in Minnesota once upon a time, long ago.

Hamada: My goodness, love music. We should do a whole show just on that …

Kent: Yeah. [laughs] 

Hamada: At some point in time. 

Brother Joe, tell us all about Grassroot Institute. 

Kent: Well, Grassroot is a watchdog. We watch the government and we try to make sure they’re doing the right thing and hold them accountable. And we also try to advocate for solutions for Hawaii’s economy to allow more flourishing and prosperity and so on.

Hamada: Yeah. It’s manifested in several ways, but if folks want to come and see you directly, where do we go? 

Kent: So, you can go to grassrootinstitute.org. Or, if you’ve got Instagram, just scroll through your feed. You’ll probably see me somehow — @grassroothawaii — there. 

And we’ve got a lot of funny, serious educational videos where we try to make policy interesting, actually, which is hard to do. But yeah, check us out on YouTube too, Grassroot Institute. 

Hamada: Yeah, I think I first saw you — whether TikTok, YouTube — doing exactly that. I think it was about the comparison of cost of living. 

Kent: Yeah. Actually, I first got my start in this. I read “The Price of Paradise” by Randy Roth, you know? And where he looks at, you know, why is the cost of living in Hawaii so high?

And so, I was a teacher at the time in Lahaina and I was wondering, “Why is it so expensive?” And so, I made this whole documentary. And I called Randy Roth actually, and I said, “Is it OK if I name this after your book?” And he said, “Well, I stole the title from someone else, actually.” 

[laughter]

Hamada: Yeah. 

Kent: So, that’s how I got my start in video policy, I guess.

Hamada: Right. Glad you did, and glad we’re here.

Kent: Yeah. 

Hamada: Let’s start with Lahaina. 

There are a myriad of different directions to go. One that stands out has to do about property. There was a Maui County Council meeting yesterday; very emotional and very profound. But also, with statements previous by the governor and now, statements today.

Can you walk us through? 

Kent: Yeah, it was a little concerning right after the Lahaina fire. We saw all of the cameras pointed at Gov. [Josh] Green, and of course, he’s making off-the-cuff comments about what should happen, and he’s trying to quell fears. 

And among the things he said was something like, “We should ban or put a moratorium on all property sales in Lahaina,” and — for the purpose of preventing scammers from swooping in and taking those properties. 

And so, I think his comments were well meaning. But the off-the-cuff nature of them made it seem like he was saying, “We’re going to trample on your property rights.” And so, that was also coupled with a lot of talk by government and the governor about, “We’re going to rebuild, and we’re going to put housing here or there or maybe a memorial.” And so, I think everyone got nervous.

Now, people today still remember — those were kind of stamped in people’s heads of what the government is gonna do. But I’ve noticed that Gov. Green has really tried to — at the beginning of every speech he talks about in Lahaina — say that, “We’re going to let Lahaina residents rebuild Lahaina.” 

And so, I think he’s taking a good, measured tone now and saying that, you know, “It’s really up to the property owners, and let’s protect property rights of the people affected rather than swooping in with our own plans.”

And so, that’s nice that he’s saying it, but it’s too bad that the other message got kind of pushed into people’s heads. And so, I think that’s part of the concerns that people raised yesterday. But also, you know, even if you talk about the rights of property owners, there’s a too-soon nature to all of this.

I mean, it’s a traumatic, sensitive thing and just to talk about anything that should happen there. But then, we also don’t want nothing to happen there either. And we have Lahaina residents who are desperate to get in and see what the damage is and survey — some houses, actually, are near the area but have not been burned down. And, of course, those people want to get in too. 

So, there are a lot of — you know, there’s a lot of anger around this issue. But I think the property rights message is the right one, at least, you know. It is important to protect the property rights of anyone there and to protect their wishes too; allow them to rebuild organically and naturally.

Hamada: There’s a lot in that, and the only thing I will say — and I’m not jumping to anybody’s defense — is that I know about, you speak in the heat of the moment — no pun intended — and it happened the same thing in regard to tourism. 

And now there’s a retreat, and now there’s concerted efforts. And so, I give a little leeway in the swirl of initial. But now, we are at that point where now we need to have a measured and specific reply instead of something that may be knee-jerk and emotional. 

But that leads to another aspect, and that is a number of lawsuits and who’s been named and who’s filing, and residents alike that are involved in that. Plus, we have congressional hearings that have now been scheduled, coming up very soon in a matter of a week and a half or so.

Your thoughts on all of this?

Kent: Well, there are dozens and dozens of lawsuits now, flying all over Hawaii. Some at Hawaiian — most at Hawaiian Electric Company [HECO] — some at Maui County, and some at property owners that surround Lahaina, like the Bishop Estates. 

And so, you know, it’s actually getting hard to keep track of all the lawsuits. But generally, what the lawsuits are saying are they’re, you know, criticizing or accusing Maui County of allegedly not managing their electric lines around the wildfire area as well as they could. Others are saying that they knew about the dangers in advance and they actually had plans and warnings from the community.

I think in 2018, there was a wildfire, and then a couple years later there was another wildfire. I mean, I watched a community hearing where Lahaina residents were upset — I think in 2021 or so — that 20 homes were burned down. And the community residents were saying, “Why didn’t they sound the sirens?”

And, you know, it sounded really similar to what we see today. And the officials and the electric company were on stage, you know, giving kind of pat answers and, “We’ll look into this,” and so on. But it is true that this wasn’t an unpredictable event, and people have been predicting this for years. 

And so, yes, we’re also seeing investigations. So you have the attorney general who has launched an investigation — a sliding-scale investigation. First, it was like not going to look for wrongdoing. Then it was going to look for wrongdoing, but it was the government. Now, it’s them hiring a third party to investigate. 

And so, they are hiring a third-party private entity called the Fire Safety Research Institute — that’s the state attorney general hiring that to look into this. But we also see the Department of Justice — Federal Bureau of Alcohol, Tobacco, Firearms and Explosives — which is working, I think, with the FBI to look into this too. So now, we definitely have the Feds involved, and we have Congress involved, just like you said. 

There’s a U.S. House hearing on Sept. 28, and that’s by the House Energy and Commerce Committee. So, HECO will take the stand, and some other officials. I think the Public Utilities Commission [PUC] will also talk there, but the Public Utilities Commission is also launching an investigation into HECO. So, lots — there’s tons of lawsuits and investigations right now.

It will be really interesting to see what comes out of this because right now, the difficulty is journalists trying to understand the situation better are somewhat getting blocked by statements saying, “Well, we can’t release the information because we have lawsuits pending.” 

Hamada: The creation of a special fund to circumvent attorneys cold-calling individuals to file suits — which will turn into be a myriad, as you’ve alluded to. And the governor creating a fund to say, “Hey, listen, go ahead and hire an attorney. Attorneys pro bono — we’d appreciate it. HECO and others that are named in lawsuits, you contribute to this and we’ll give you satisfaction in that arena.” 

I’ve never heard of anything like that before. 

Kent: Yeah. Yeah, that is concerning. And of course, who is paying for this fund? Yes, if some groups are contributing, but I’m sure taxpayers are on the hook for this as well.

And so, that is almost from a civil liberties standpoint too. I mean, are they all in this together, or what’s going on? But the costs will be borne by the residents of Hawaii, one way or another. I mean, if you look at HECO, they’re begging the Public Utilities Commission, “Please let us pass this on to ratepayers. Let us raise rates.”

Remember, PUC is not allowed — or PUC has jurisdiction over their rates. And whether they go up or down, it’s PUC’s call. Now, if PUC says no, then HECO presumably would have to pay for any and all liabilities by themselves without raising rates. 

But the challenge there is the math doesn’t add up. The liabilities potentially could be $3 billion, and HECO only has $2.4 billion. And so, so then in that case, we’re looking at a potential bankruptcy if HECO is found to be liable. 

Hamada: Not unprecedented. 

Kent: Exactly.

Hamada: That happened with PG&E [Pacific Gas and Electric Company]. 

Kent: PG&E, exactly. 

But of course, HECO is saying that, “We didn’t start the fire,” right? They have the theory that there’s a second fire that was started after the first fire — which they may or may not have started — was put out. 

I’m trying to speak, you know, legalese here a little bit, but …

Hamada: Yeah. 

Kent: You know, it is interesting, though, that HECO is trying its best to push forward a theory that the Maui County stepped away — the fire department — stepped away from the fire, and that the fire then reignited, or maybe there was a second fire or something, to remove culpability from themselves — you know, HECO. 

So anyways, we’ll see what happens in court, though.

Hamada: It’s already — and we’re just six weeks-plus — and I’m already just shaking my head. Because there is the inevitability — there are some people that are saying, “Not one person has apologized. Not one person said, ‘We’re so very sorry that this happened.’”

And the reason why: It’s all about litigation.

Kent: Yeah, that’s right. 

Hamada: If you go publicly and apologize, then you’re bringing the onus and responsibility on you. 

Kent: That’s right. Even the governor talked about this. 

I think journalists were recently asking about exactly that, and he sort of admitted that, “Yes, it’d be nice if we could actually get some healing and apologies out there, but the legal natures of this make that hard to do.” 

I mean, just look at Herman Andaya, the, you know, head of the emergency response team on Maui County. When you watch the video of him talking about the sirens not sounding, you almost don’t believe it. 

You know, he was saying that they wouldn’t have done anything different and that they were afraid that people would run into the fire and — but you can’t really believe that he would say that except if you think about the legal liability that he would incur if he did say that he, if he did say, “I’m sorry,” for example. 

So, it’s just too bad.

Hamada: I want to change gears for a moment. And thank you for all the updates and coverage, you know, in regard to the Valley Isle. Joe Kent, of course, with Grassroot, in studio. We have just a couple of minutes. 

You invoked FOIA [Freedom of Information Act] in order to get information about the rail project. I have HART [Honolulu Authority for Rapid Transit] in studio tomorrow — thank you for the show prep.

But can you explain what transpired here? 

Kent: Yeah, sure. So, after the rail opened — remember, at the beginning of July — we had about 14,000 passengers per day that first week which was, you know, great to see. But then it fell down to around 3,100 passengers per day, and we were wondering why the trains were so empty and why were they being run that way.

Officials at the city had said that, “Oh, just wait until the school opens.” And so, well, we waited, and we looked, and we asked, “OK, what are the numbers now that schools have opened on Aug. 7 and Aug. 21?” 

The numbers actually went down. Ridership now is around 3,000 per day — down from 3,100. So, it’s down slightly. And that’s after a new program where high school students can apply for a free HOLO card. Remember, this was kind of like, “Oh, we’ll get students to ride the rail,” right? 

So, I guess I have to ride the rail for myself again a few times to see if, you know, any younger people are on there. 

But I’m wondering, what is next for the rail? Is it going to — are we assuming that it’s going to be run empty this long? And, if you remember, that’s a huge cost per person and per ride. It’s — what? — over $50 per ticket, I think. Actually, it even went up higher than that. 

And so, why are we running these trains for so long at such an expensive, in such an expensive way? If we’re trying to save costs, wouldn’t it be better to save the money and put it towards the rest of the construction? So, just a question. 

Hamada: Well, and there’s a lot behind that question. 

Kent: Yeah, I’m sure. [laughter]

Hamada: As there should be. 

Kent: Yeah, yeah. 

Hamada: And those questions need to be asked. 

Once again, Joe Kent, Grassroot Institute of Hawaii. Website where we can connect?

Kent: Grassrootinstitute.org 

Hamada: There we go. That was it. Thank you so very much for today and every time we visit. 

Kent: Thanks so much. Great. Thank you.