Lava flow testing new disaster law

Just seven days before a lava flow erupted that’s now threatening a wide swath of lower Puna, Gov. Neil Abercrombie signed into law a bill giving the state and counties broad new powers in emergencies and disasters.


Just seven days before a lava flow erupted that’s now threatening a wide swath of lower Puna, Gov. Neil Abercrombie signed into law a bill giving the state and counties broad new powers in emergencies and disasters.

The new law, known as Act 111, is hitting close to home for Puna residents, visitors, businesses and the media striving to report on a slowly unfolding natural disaster the likes of which is not often seen in the United States.

Residents closest to the path of the creeping lava are barred from ferrying guests past the roadblocks into their homes. The government is compiling lists of employees at Pahoa Village businesses, who are being issued permits to allow special access should the lava threat become more urgent.

Decals or windshield placards are being discussed for residents who need to use roadways into and out of the areas expected to be isolated once the lava flow resumes its slow slither to the sea. Nothing has been finalized, but just the discussion alarms some residents, who say they moved to rural Puna precisely because they don’t want to live in gated communities.

Working with the Federal Aviation Administration, the county instituted a no-fly zone over the lava flow area, irking commercial tour operators who make their living showing off the island’s lava to tourists.

Allowed by law to “restrict the congregation of the public in stricken or dangerous areas or under dangerous conditions,” the government has sent in 80 National Guard troops to help staff roadblocks and provide security.

And the government is cracking down on those crossing county or private property to get close to the lava flow on foot. The state of emergency allows for increased penalties against those trespassing or committing other crimes.

Government officials say the drastic measures have to be implemented to protect the safety of the residents and those who would put themselves or the emergency management officials who must rescue them in danger.

“I can’t even begin to imagine what these people are going through, seeing this rock in their backyard getting closer and closer, crackling and burning,” said county Civil Defense Administrator Daryl Oliveira. “The last thing they need is strangers walking through their property, shoving a microphone in their face and adding to their discomfort.”

And if someone objects to these restrictions on constitutional or other grounds?

Act 111 makes that more difficult as well. Instead of going to a judge and asking for an injunction against the government activity, the aggrieved party must make a case before a three-judge panel and a majority of two judges must agree, after giving five days notice to the government.

“It is structured like a war tribunal,” said Elaine Dunbar of Lihue, Kauai, objecting to an early version of the bill, “unless it is Martial Law then you should just come out and say that.”

Hawaii County government has tried to mitigate what many in the media see as an abridgement of their rights. Officials with the mayor’s office, county Civil Defense and scientists with the Hawaiian Volcano Observatory hold thrice-daily news briefings. The county daily provides aerial images and short video clips of lava activity.

A week or so ago, the county lifted the no-fly zone enough to allow helicopters hired by the media to fly over the lava inundation areas, provided they sign up for two-hour increments that are offered three times a day.

Even that has caused problems, said Oliveira. He said helicopters are flying too low, literally fanning the flames, as videographers strive for that closeup shot.

Allowing media into the barricaded neighborhood on foot also caused problems with videographers going onto private property without permission, he said.

“We did try to provide media access. Unfortunately not everyone follows the rules,” he told Stephens Media Friday. “Give them an inch, they take a mile.”

The measures haven’t totally mollified the media, either. First Amendment attorneys remain concerned about the broad powers granted under the new law.

“This seems to give unbridled discretion under the emergency proclamation and makes it extraordinarily difficult to challenge,” said Honolulu attorney Jeff Portnoy, who often represents media in First Amendment questions. “The way it is worded, they just have tremendous powers.”

Act 111 renamed state Civil Defense the Hawaii Emergency Management Agency. But it did much more than that.

The act expands powers previously held solely by the governor to the county mayors to declare emergencies and wield special authority to require mandatory evacuations, to direct and control the conduct of civilians and to direct and control movement of vehicles and pedestrians.

Hawaii County Mayor Billy Kenoi took advantage of the new law in issuing emergency proclamations on Sept. 4. He then signed a supplementary proclamation Oct. 16 limiting traffic on Railroad Avenue and Chain of Craters Road, two alternative access routes being prepared in the event Highway 130 gets closed off.

Act 111 adds “an emergency or disaster; or danger from flood, fire, storm, earthquake, civil disturbances, or terrorist events,” to the “war, insurrection, invasion, riot, or imminent danger thereof,” when the governor can activate the National Guard. It also allows the governor to mobilize the National Guard “to detect, prevent, prepare for, investigate, respond to, or recover from any of the events for which an order to active service may be made.”

First introduced in 2013, the bill leading to the new law proceeded through the legislative process with strong support from state and county civil defense agencies.

“The bill will enhance public safety and strengthen emergency management by making the mayor and the county Civil Defense agency responsible for emergency management in our county,” Kenoi said in testimony. “It also clarifies the county’s powers and authorities to act in times of disaster.”

It passed the House with two of the 50 lawmakers voting no. The sole Republican in the 25-member Senate also voted no.

Edward T. Teixeira, former vice director of state Civil Defense, was the most consistent opponent. He believed the governor should have direct control over the agency, not the military arm of the government.

“Placing the state emergency management agency under the Department of Defense and adjutant general places an unnecessary layering of responsibility and purposefully insulates the governor from the day-to-day exigencies involving the protection of our residents and visitors,” Teixeira said in testimony. “To be clear, there should be a either a civilian director of emergency management or a civilian administrator of emergency management who reports directly to the governor.”


Dunbar submitted the only other opposing testimony. Dunbar, speaking to an early version of the bill, didn’t mince words.

“If it becomes law it can present seriously harmful repercussions with no recourse to undo in the likely event it is abused,” Dunbar said in written testimony. “This is the same way legislation for torture, rendition, assassination of Americans, and all the other unconstitutional acts being perpetrated by the U.S. came to be.”

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