Missing documents muddle wildfire probe

Missing Maui Emergency Management Agency documents make it “difficult to make a complete and accurate accounting” of activities inside the Emergency Operations Center on Aug. 8, when fires killed 101 people, burned 6,721 acres and left 8,000 people homeless, according to the state attorney general.

To document individual tasks and events, including emergency center actions, formal Incident Command System forms are used to help build a minute-by-minute and hour-by-hour understanding of the emergency and response.

The missing forms are a key component in the first phase of findings released on April 17 by the state attorney general in the investigation of how the Maui wildfires were handled.

The forms, formally dubbed ICS 214 forms, are used to recreate events and write up after-action reports, and “completion of these forms is an expectation when assigned to the EOC,” read the preliminary findings.

Investigators for the attorney general reviewed ICS forms for emergency response activities from Aug. 7-9, from the Maui Police Department, the county Department of Fire and Public Safety, the Department of the Corporation Counsel, the Maui Department of Agriculture and the office of Mayor Richard Bissen.

The stated mission of the Maui Emergency Management Agency is “Utilizing emergency management principles, we protect all persons within the County of Maui to achieve whole community resiliency. This includes planning, preparing, and coordinating emergency management operations in meeting disaster situations and coordinating post-disaster recovery operations.”

Yet, according to the AG’s report, missing ICS forms from MEMA have made the investigation more difficult.

“There were no ICS 214 Forms received from MEMA personnel for these dates,” investigators wrote. “Because of the missing data, it is difficult to make a complete and accurate accounting of activities within the EOC from August 7, 2023 through August 9, 2023.”

The state is paying at least $1.5 million to the Fire Safety Research Institute to conduct its investigation. The findings released so far are the first phase of that probe.

Maui’s EOC was partially activated at 9 p.m. on Aug. 7 and fully activated at 4:30 p.m. on Aug. 8. The center requires an access code to enter, is under video surveillance and follows strict sign-in protocols.

But in the first phase of findings, no definitive data exists showing which MEMA personnel were there and doing what while Lahaina burned.

“There is no data showing which MEMA personnel responded on August 8, 2023. The only missing EOC sign-in sheet is the one for MEMA personnel on Aug. 8, 2023. Maui County has not produced this document after multiple requests,” investigators wrote. “Even though MEMA encourages strict compliance, it is apparent that people entered the EOC without following the sign in/out process.”

MEMA’s administrator during the fires, Herman Andaya, was not at the center and attending at conference on O‘ahu.

Andaya had MEMA’s administrative assistant, Gaye Gabuat, in the county’s EOC, text him updates, according to mobile phone records reviewed by investigators. He didn’t return to Maui until Aug. 9, 2023.

Under fire for MEMA’s handling of the emergency response, Andaya resigned Aug. 17, saying he did not regret not activating warning sirens as the flames that eventually destroyed Lahaina began to threaten the town.

He did not reply to Honolulu Star-Advertiser requests for comment on the missing reports.

No foul play

Maui Corporation Counsel Victoria J. Takayesu told the Star-Advertiser that officials found no evidence that Andaya or MEMA staff altered, hid or destroyed documents.

“Absolutely not,” said Takayesu, who noted that Andaya’s office was searched after she issued a litigation hold on county communications in the days after the fire.

Andaya was interviewed by county attorneys, not deposed, Takayesu said, after the Aug. 8 fires and again after he resigned on Aug. 17.

“He’s been cooperative. That’s when we learned about the siren issue. There were several apparently that were not working. I don’t know if that played into his decision (not to use the sirens) … but I am aware that he did notify the state HI-EMA that they were not working,” said Takayesu.

Takayesu said officials found evidence that Andaya did notify the state that three of the four sirens in West Maui were not working in the months before the fires.

Hawaii Emergency Management Agency officials did not reply to Star-Advertiser request for comment.

Why MEMA was the only county department that didn’t fill out ICS 214 forms remains part of the ongoing investigation by the state.

Asked what happened to the missing documents, Takayesu said, “That I cannot answer, other than to say that if it was there, we gave it (to investigators).

“I don’t know why it wasn’t there. Maybe they were not filled out. Maybe things were done (in the EOC by MEMA staff) verbally. I really can’t speak to that. All of our requests should have been documented.”

Using a web-based version of the center’s operations, some staff members were able to confirm their attendance and activities.

The missing data and documentation makes it harder for investigators to break down the decision-making by emergency managers on the day 101 people died and 2,173 structures burned to the ground, causing over $6 billion in damage.

The WebEOC is the data management system used to manage operations and staffing, issue evacuation alerts and perform other EOC functions. Between Aug. 7 and Aug. 9, MEMA has 22 WebEOC entries detailing activities.

Those actions range from an entry on Aug. 7 at 10:29 a.m. when Andaya’s deputy, listed as “director,” Paul Coe “initiated incident action plan” for “weather.”

There is no other information available about what that plan was in the first phase of the AG’s investigation.

At 9:36 a.m. on Aug. 8, MEMA’s Operations Section Chief Rocky Keohuhu- Bolorsent updated HI-EMA officials that the Lahaina fire was “100percent contained as of 0830 hours,” and included a brief reference to a shift change in the EOC.

The MEMA WebEOC event log includes a single entry mentioning a Kula evacuation order at 4:09 a.m. Aug. 8. There are three entries about power outages impacting 7,000 customers, and the deployment of a generator to the Lahaina Civic Center.

At 12:50 p.m. Aug. 8, a MEMA WebEOC entry by David Duarte, a command center support staff member, noted that at 8 a.m. phone issues in Kahului required a reboot of a network switch.

Alert system

What is known about the actions that MEMA took in the EOC is that it issued 14 public alerts between Aug. 7-9 using the Wireless Emergency Alerts system, 13 of them labeled “Evacuation Immediate Warning” and one “Fire Warning.”

The WEA system allows customers who own compatible mobile devices to receive geographically targeted, text-like messages alerting them of imminent threats to safety in their area, according to the Federal Communications Commission.

The system enables government officials to target emergency alerts to specific geographic areas — Lahaina, for example.

What complicated matters on Aug. 8 were power and network outages that left many users without access to any form of communication. MEMA officials were not notified that mobile service providers were down in West Maui when they sent the alerts.

Also, only people with a WEA-compatible mobile device receive those alerts, such as the evacuation notices MEMA sent, according to the FCC. Some older mobile phones do not receive WEA alerts, and if the device is off or in “airplane mode,” an evacuation alert will not go through.

If the mobile device is not within the coverage area of a cell tower and able to receive a signal from that cell tower, or if fire renders cell towers inoperable, a notice to gather one’s family and pets and evacuate immediately won’t be received.

If a wireless provider doesn’t participate in WEA, people using that provider don’t receive the evacuation order.

In addition, some older phones may not display the alert if the user is on a call or in a data session, such as searching online for information about how to escape a fast-moving fire.

The first of two WEA evacuation alerts that MEMA issued for Lahaina was at 4:16 p.m. Aug. 8.

“Maui Emergency Management Agency has issued an evacuation order on Maui island for Kelawea Mauka Subdivision due to a brushfire. Repeat, Maui Emergency Management Agency has issued an evacuation order on Maui island for Kelawea Mauka Subdivision due to a brushfire,” read the alert.

“Evacuate your family and pets now, do not delay. Shelter is open at Lahaina Civic Center. Expect conditions that may make driving difficult and watch for public safety personnel operating in the area. Sent by the Maui Emergency Management Agency.”

The next WEA evacuation alert for Lahaina didn’t come until 8:46 p.m. Aug. 8, and it targeted the Wahikuli subdivision.

Knowing that power and network outages made mass communications almost impossible, police and firefighters braved the inferno Aug. 8 to go door to door in Lahaina and evacuate as many people as they could.

The high winds and fast- moving flames destroyed firefighting vehicles and left some first responders fighting for their lives while saving citizens.

No discussion or details about why MEMA waited until 4:16 p.m. to send an emergency alert over a digital channel amid power and network outages is included in the first phase of findings from the AG.

No information or documents detailing the discussions emergency management officials had about when to issue evacuation orders and how to coordinate those evacuations are part of the findings so far.

HI-EMA administrator retired Col. James Barros told investigators that he heard from Andaya “several times” by phone on Aug. 8. Barros recalled Andaya telling him that the Lahaina fire was contained and the focus was on the Kula fire.

Maj. Gen. Kenneth S. Hara, adjutant general for the Hawaii Department of Defense, spoke directly with Bissen at 8:48 p.m. on Aug. 8.

“During this call, MG Hara did not receive ‘any further details as to the severity of the fires in Lahaina’ and recollected that the ‘focus was on the Kula fire threatening homes and property’,” according to the findings.

Later that evening, HI-EMA received a call from U.S. Coast Guard officials, saying they were deploying cutters from Oahu because of reports of people in the water.

According to the timeline provided by HI-EMA, the state did not receive word of any fatalities or learn about the extent of the damage until Aug. 9.

Hara received a phone call at 4 a.m. and 4:15 a.m. from acting Gov. Sylvia Luke, notifying him of the devastation.

Hara told Fire Safety Research Institute investigators, “That was the first time I learned Lahaina (Town) burned; we still didn’t know how many died.”

Liability for the fires

There are about 140 civil actions arising from the Aug. 8 fires, and a court- appointed mediator from California will help shepherd them through the legal process.

There are suits against Hawaiian Electric, including one filed by Maui County. The county is a defendant in lawsuits, as is the state. The legal aftermath of the Aug. 8 fires is the biggest incidence of mass tort litigation in state history.

Determining whether the county is liable for the fatal disaster will be complex.

David Callies, professor emeritus at the University of Hawaii’s William S. Richardson School of Law who taught state and local government, told the Star- Advertiser that the county does not enjoy the sovereign immunity that state government does. The county is liable under section 1983 of the Civil Rights Act, a statute broadly applied to civil actions, he said.

“If it’s a city agency, then they don’t have the immunity that the state or federal government (does). They can be sued … there is no immunity from suit,” said Callies.

Mark S. Davis, founding partner of Davis Levin Livingston, told the Star- Advertiser his firm is representing land and business owners on Front Street.

“There are some immunity statutes … that protect them from the moment there is an emergency. Afterwards, I know there has been a lot of discussion about the applicability to the county, but a lot of their liability arises out of … their lack of preparedness,” said Davis. “If the injuries occurred for their lack of preparation … of course the county is liable for all of the county agencies.”

The state has its liability determined by a judge, Davis said, while the county’s liability is determined by a jury. The county does not have the insurance to cover the significant damages that may arise in the fires’ aftermath.

“Despite their lack of resources or inability to pay any significant money to the losses and claims, they do have some leverage with regard to their ability to relax the permitting requirements, some of the setback rules, some of the things that are a function of county law. That could be more valuable than money to some of the property owners on Maui,” he said.

Troy Andrade, a tort law professor at UH, told the Star-Advertiser that the sheer number of parties involved and many factors at play will have to be carefully parsed through to determine liability.

“I don’t know that there is one party that you can point the finger at on this one,” said Andrade.

Once liability is determined or a settlement reached, the Maui County Council controls the county’s money and would have to approve it.

“I have to imagine there is active conversation between all the parties about how to resolve this,” said Andrade. “This is a hard one. This is a complicated situation. There is a lot of pain; there is a lot of history to that place. There are a lot of layers to the conflict that make it difficult to navigate.”