(Tribune News Service) — At the core of the issue is the so-called Morgan and DeVos doctrines, which have historically shielded high-ranking executive branch officials from being deposed in similar cases unless there are exceptional circumstances.

A federal judge decided Friday to quash an attempt to make the commander of the U.S. Pacific Fleet sit for a deposition in a civil lawsuit brought by military and civilian families whose drinking water was contaminated with jet fuel from the Navy's Red Hill fuel facility in November 2021.

In a legal order issued by Magistrate Judge Kenneth J. Mansfield of Hawaii's U.S. District Court, he concluded attorneys representing the families had not demonstrated that Adm. Samuel Paparo had information they couldn't get elsewhere and did not have a compelling reason to force his testimony.

At the core of the issue is the so-called Morgan and DeVos doctrines, which have historically shielded high-ranking executive branch officials from being deposed in similar cases unless there are exceptional circumstances. Courts have been reluctant to require such top officials to testify out of concern it would bog down government functions and raise potential separation-of-powers concerns.

Paparo, who works out of the Pacific Fleet headquarters on Oahu, oversees all U.S. naval operations across the Pacific and parts of the Indian Ocean. The fleet has been conducting nearly constant operations across its area of operations as China and its neighbors are locked in bitter disputes over territorial and navigation rights in the South China Sea, a critical waterway that a third of all international trade travels through.

Paparo answers to Adm. John Aquilino, who previously commanded the Pacific Fleet before taking over U.S. Indo-Pacific Command at Camp Smith. Aquilino commands all forces in the U.S. military's largest theater of operations.

LAWYERS representing the plaintiffs argued that while Paparo is a "senior leader, " he is not a high enough ranking official for the Morgan and DeVos doctrines to preclude him from going to court, arguing that in his subordinate role to more senior leaders, he is more akin to a police captain.

"The Court is not persuaded by Plaintiffs' arguments that Admiral Paparo is not a high-ranking government official, " Mansfield wrote. "Although the Court readily acknowledges the significant duties that a sheriff's captain or chief deputy undertake, the Court is not willing to equate the responsibilities of those positions to those of the Commander of the largest fleet in the U.S. Navy and the world. Under the circumstances, the Court finds that Admiral Paparo is a high ranking official."

The underground Red Hill facility holds about 104 million gallons of fuel that sit just 100 feet above a critical aquifer that most of Oahu relies on for drinking water. It served as the Pacific Fleet's largest fuel reserve in the region since it was built during World War II, but after decades of neglect and poor maintenance, the facility fell into deep disrepair.

On May 6, 2021, fuel at the facility spilled and entered part of the fire suppression system, where it sat until a worker accidentally ruptured a pipe in November 2021, leading to the fuel contaminating the Navy water system, which serves 93, 000 people. The military is now trying to remove the fuel from the facility and transition to a "distributed " fuel logistics model by placing it in a combination of storage facilities and tanker vessels spread across the Pacific.

PAPARO OFFICIALLY took on his position at the Pacific Fleet from Aquilino just one day before the May 2021 spill. After the November spill he ordered an investigation, and according to emails cited in court documents, Paparo indicated he suspected it was related to the May 2021 incident.

Attorney's representing the government argue that the lawyers representing the families are trying to use the court to harass and humiliate Paparo.

The plaintiffs filed a motion arguing that only Paparo "can testify to any of these critical lines of questioning ... this information is unobtainable through any other source. This deposition is not sought to annoy, embarrass, oppress, or unduly burden Admiral Paparo, who will be treated with all due deference owed to his station but should not be shielded from essential litigation questioning solely because of that station."

But Mansfield wrote Friday that the plaintiffs had not established that Paparo "has unique, first-hand knowledge of their proposed areas of inquiry or how each area of inquiry is essential to the negligent undertaking claim." In his decision, Mansfield posited that while Paparo ordered the Pacific Fleet's investigation, he did not participate in it or write it.

He also stated that the attorneys representing the families had not deposed other officials who had more direct and detailed knowledge of the spill and its aftermath.

Mansfield wrote that "though the parties disagree whether discovery regarding Plaintiffs' proposed topics is relevant, it is apparent from this record that Plaintiffs have not attempted to obtain this information from other means of discovery. ... There are at least five separate commands below Admiral Paparo with more direct oversight of Red Hill."

Kristina Baehr, one of the attorneys representing the plaintiffs, told the Honolulu Star-Advertiser that while Paparo himself will not testify, "the evidence will speak for itself."

"Navy policy requires immediate disclosure of any suspected water contamination, " Baehr said. "The admiral personally knew there was fuel in the water on November 28, 2021, and yet then approved PR messaging to residents that there was 'no immediate indication the water is not safe to drink.'"

NBC reported earlier this month that Defense Secretary Lloyd Austin had sent President Joe Biden his recommendation to appoint Paparo as the next chief of naval operations, the Navy's senior military officer and a member of the Joint Chiefs of Staff.

The White House has yet to publicly announce a nominee for the Navy's top position, and the appointment would require congressional approval, though Paparo enjoys bipartisan support among lawmakers in Washington. Army Maj. Mandy Feindt, one of the plaintiffs in the case, has vowed to lobby members of Congress to oppose Paparo's nomination.

IF ASSIGNED the Navy's top role, Paparo would be in an administrative position overseeing all Navy personnel and facilities—including Red Hill. Though a joint military task force led by Vice Adm. John Wade is expected to drain most of the fuel in the facility by the end of January, the Navy's remediation and closure of the facility is expected to take much longer.

In addition to the lawsuit, the Red Hill water crisis has also become the subject of a federal criminal investigation.

Officials have been tight-lipped on the details, but special agents with the U.S. Environmental Protection Agency's Criminal Investigation Division and the Naval Criminal Investigative Service have been escorting witnesses to the panel and supporting the grand jury's investigation for months. The probe is being led by Krishna Dighe, senior counsel with the Department of Justice's Environment and Natural Resources Division.

Those who have been called to testify include Capt. Trent Kalp, who was in charge of Fleet Logistics Center Pearl Harbor during the May 2021 fuel leak and left the job to become the Pacific Fleet's director of supply just before the November 2021 spill.

Also called to testify was Sherri Eng, who serves as Naval Facilities Engineering Systems Command environmental business line leader and Navy Region Hawaii environmental program manager.

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