Lawyers are invoking an ancient legal doctrine in an effort to hold property owners liable for fires that destroyed much of Lahaina on Aug. 8. (Kevin Fujii/Civil Beat/2023)
Hawaii courts soon may have to address a novel legal question related to the Maui wildfires: whether allowing invasive grass to grow unheeded on one’s property is the legal equivalent of keeping radioactive waste, dynamite or a dangerous wild animal.
“This is an ultrahazardous activity,” plaintiff’s lawyer Ken Kasdan said, referring to what he alleges is a failure of large Maui landowners like Kamehameha Schools and West Maui Land Co. to control vegetation on their property. “There is not a lot of difference between your stick of dynamite and these fields of grasses just waiting to explode.”
Kasdan is one of the latest in a stampede of lawyers to Maui’s state circuit courthouse after the fires. His complaint on behalf of Lahaina resident Chardell Naki, whose home was destroyed in the Aug. 8 maelstrom, alleges landowners like Kamehameha Schools and West Maui Land fueled the devastating blazes by allowing combustible grasses to flourish on their property.
“If you own the fuel, you own the fire,” the complaint says.
In a statement, Kamehameha Schools noted the cause of the fires is still under investigation and did not want to speculate or put forward premature conclusions. But it said the organization is committed to restoring its “lands and waters to produce robust food systems, native ecosystems and educational opportunities.”
“Reversing over a century of degradation and exploitation of the land from colonialism and plantations is a long and difficult process,” a spokesman said. “We will continue to work with our communities to bring our culture, people, and resiliency back to the aina.”
Most of the roughly two dozen suits filed so far center on claims of negligence, usually on the part of the state, Maui County or Hawaiian Electric Industries. Kasdan’s complaint does the same, alleging the state of Hawaii, Maui County and landowners were negligent by failing to address the known risk posed by dry grass and high winds.
But Kasdan’s suit goes further. It also alleges Kamehameha Schools and the other landowners were engaged in an activity so dangerous – letting grass grow wild on their land — that the plaintiffs don’t have to prove the landowners were negligent. In other words, the argument goes, the defendants should be held liable even if they did everything possible to mitigate the risks posed by having large fields of grass.
“At the time the fire(s) ignited, and as they continued to spread, Defendants were engaged in an inherently dangerous activity of allowing large amounts of dry flammable grass on their property (and/or failing to maintain safe amounts thereof), which exceeded the capacity of any firebreaks or other defensive measures that may have been present,” the suit says.