This is the fifth part of This is Our Hawaiʻi, a new podcast from Hawaiʻi Public Radio. Start from the beginning here. Local support provided by Bess Press.
As residents of Lahaina grappled with the chaos and heartbreak of the fire that broke out on Aug. 8, few could anticipate the nightmare that lay ahead of them: the recovery process.
“The process is daunting,” said Kukui Keahi, the operations manager for Kakoʻo Maui, one of the hubs set up to connect people with resources.
Often, Keahi will find herself simply sitting with people as they try to make sense of the havoc the disaster has wrought on their lives. “Everyone's going through their own waves of grief,” she said.
The fire killed at least 100 people and destroyed over 2,000 buildings. Some 8,000 people were forced to move to hotels and temporary shelters.
Keahi understands the overwhelming position that many residents are in. She too lost her home in Lahaina during the fire.
She is sympathetic toward people who are beginning the paperwork for disaster assistance. After all, they may have spent the last few months grappling with where to send their kids to school or mourning the deaths of loved ones. Under those circumstances, the bureaucratic details may take a backseat.
But Keahi said there’s another factor in some people’s decision to delay applying for assistance from the Federal Emergency Management Agency or other organizations: a lack of trust in government, stoked by misinformation.
“I think the mistrust was there from the moment that disaster happened,” Keahi said, adding that she felt social media played a “huge role” in shaping people’s views on the fire and the subsequent government response.
The rumor mill
One rumor trending on social media claimed that individuals who applied for disaster assistance could have their land seized by FEMA through eminent domain.
Eminent domain allows a government to take private property for a public purpose, provided that “just compensation” is paid to the property owner.
FEMA, whose powers are laid out in the Stafford Act, does not have the power of eminent domain.
“We do not have the authorization to take land from anyone. We're not sure where that rumor came from,” said Zella Campbell, a project manager with FEMA.
Even though a rumor is false, it can have real-life consequences. As the number of disasters increases, FEMA is developing a more targeted approach to combat the rampant spread of misinformation.
Campbell is part of a team that monitors social media posts — along with the coconut wireless — about the Lahaina fire. When a harmful rumor gains traction, they flag it and develop an appropriate response for their rumor control page, which is essentially an FAQ page dedicated to rumors.
Campbell said that the rumor about FEMA and eminent domain spiked in the early weeks of the disaster. Several social media posts and comments referenced the false claim, and multiple Maui residents alluded to it while giving testimony in front of the Maui County Council.
The rumor even gave Keahi pause when she began her application for disaster aid. She said it took several conversations with a FEMA representative to feel comfortable moving forward with the process and encouraging her family members to apply.
“I'm over nine generations from Lahaina, and everyone in my family but one person, one family member, lost their home,” Keahi said. She feels responsible for protecting her family’s property.
“I'll be damned if someone's gonna take my family land,” she told HPR.
This rumor derives its power from the fear that Lahaina residents could lose their land — a fear that Maui attorney Lance Collins thinks is legitimate. “The ʻFEMA is going to confiscate our land’ issue is trying to describe a genuine concern,” Collins said.
As missed mortgage payments stack up for some residents and reports of predatory realtors make headlines, Collins said these worries about property loss need to be taken seriously, even when they manifest as rumors.
And while FEMA does not have eminent domain power, the state or county government could still make a claim to Lahaina lands.
How has Hawaiʻi law shaped eminent domain?
Eminent domain, which empowers the government to seize private property, has two limitations. The property must be for a public purpose and the government must provide “just compensation” to the owner.
"You have a constitutional right to get fair market value” for seized property, said professor Thomas Mitchell, the director of the Initiative on Land, Housing & Property Rights.
But that right isn’t always honored in eminent domain cases, especially when those cases affect people of color, Mitchell said.
And “public use” can be equally murky. A dispute over the public use argument in an eminent domain claim on Oʻahu resulted in a landmark U.S. Supreme Court case — Hawaiʻi Housing Authority v. Midkiff.
In 1967, the Hawaiʻi Legislature passed the Land Reform Act to address a concentration of land ownership on Oʻahu among a handful of large landowners. The act allowed leaseholders with homes on privately held lands to petition the Hawaiʻi Housing Authority to condemn the land under those houses.
The housing authority would sell the land back to the petitioner, who would then own both the home and the land underneath.
Although the state was condemning land that belonged to one private party only to sell it to another private party, attorney Lawrence Tribe argued in front of the Supreme Court that the act met the requirements of the public use clause because the Legislature intended to create more equity in the housing market.
The justices unanimously sided with the state, and the Land Reform Act was viewed at the time as a big win for affordable housing. But the case set a precedent that had lasting ramifications for eminent domain.
“[It] pretty much destroyed any argument about public use,” said David Callies, a longtime professor at the University of Hawaiʻi William S. Richardson School of Law.
Unless they are making a public use argument that is literally impossible, Callies contends that governments more or less have free rein in claiming eminent domain.
Callies added that people who are worried that they may be vulnerable to eminent domain have no legal recourse.
The reality for Lahaina property owners
While they all cited instances of eminent domain abuse, Callies, Mitchell, and Collins agreed that the constitutional power can benefit the public. There are some cases of local governments using eminent domain in the wake of disaster to relocate public hospitals or to construct barriers against flooding.
Last year, Maui County Council even recommended using eminent domain to acquire land owned by developer Peter Martin. The land had been earmarked for conservation, including fire mitigation, before Martin’s purchase.
However, the negative response to the rumor involving FEMA and eminent domain suggests that residents would be highly skeptical of a state or county effort to acquire lands in Lahaina.
When reached for comment on the use of eminent domain in Lahaina, Gov. Josh Green’s office said that there is “currently no discussion or direction on this topic.” The County of Maui has not responded.
Attorney Lance Collins said that many people will likely lose their land in Lahaina regardless of whether the government gets involved.
“Before you get to the part where you have government seizing land,” Collins said, “people basically have to give up their land because they just can't afford to rebuild.”
Collins is advocating for the governor to pass a foreclosure moratorium that would pause mortgage payments for the next three years. A federal foreclosure moratorium is in place until May 2024 for certain federally-backed loans, but Collins fears it will not be enough.
As Lahaina resident Kukui Keahi hears the struggles of those who come into the Kakoʻo Maui resource hub, she also worries about her community’s ability to keep their homes. She finds hope in one possible path forward: community ownership.
Hawaiʻi Land Trust President ʻOlu Campbell said he’s received almost nonstop calls since the fire about the possibility of community ownership in Lahaina’s recovery. Campbell said Hawaiʻi Land Trust is just one of the organizations involved in these conversations, and they have not yet decided what their involvement will be.
While community ownership “isn’t a silver bullet,” Campbell thinks it’s a promising avenue that aligns with resident values.
“Just the thought of the disaster resulting in the continued dispossession for families that have been there for generations… that’s a really negative thing for the community,” Campbell said. “I think these types of solutions, however complicated they may be, are a little beacon of hope.”
Above all, Keahi wants to see a strategy that keeps her family and friends together in Lahaina.
“I would love for generational families to be able to go home.” Keahi said, “I just want to go back to a thriving community.”
This Is Our Hawaiʻi is produced by Hawaiʻi Public Radio, a member of the NPR Podcast Network, with support from PRX and is made possible in part by a grant from the John S. and James L. Knight Foundation.
This podcast is hosted by Russell Subiono and produced by Savannah Harriman-Pote, with assistance from HPR staff: Ananddev Banerjee, Bill Dorman, Sylvia Flores, Casey Harlow, Sophia McCullough, Liberty Peralta, Krista Rados and Jason Ubay.
Mahalo to Maddie Bender for her production assistance and to PRX's Mike Russo for his continued support. Logo design by Kristin Lipman.
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