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Appeals Court Upholds State's $4 Million Fine Against Kauai Landowner James Pflueger

James Pflueger

BY MALIA ZIMMERMAN - A Kauai landowner who caused a catastrophic mudslide on November 26, 2001, which destroyed a rare coral reef and polluted a pristine bay at Pilaa, Kauai, must pay a $4 million fine to the state, according to the Hawaii Intermediate Court of Appeals.

James Pflueger pled guilty in 2006 to criminal charges of illegally grading and grubbing his 387-acre property at Pilaa in 2001, which left 100 acres of red dirt exposed.

A heavy rainstorm that night in November 2001 pushed 1,000 tons of mud and debris into the once sparkling ocean, causing more than $100 million damage to the 20-acres of the reef that was awaiting the same federal protection that Oahu’s Hanauma Bay enjoys.

After a joint investigation by the Kauai County, state Department of Health and the U.S. Environmental Protection Agency, Pflueger was charged with 13 felony counts and pled guilty to 10 counts in 2006. He was fined $12 million in restitution and fees. The EPA portion of the fine - $7.5 million - was the largest penalty against an individual polluter in U.S. history.

The state Board of Land and Natural Resources also fined Pflueger’s company Pilaa 400 LLC, the listed property owner, $4 million for the impact Pflueger’s illegal grading had on conservation land.

Pflueger appealed the ruling to the Fifth Circuit Court on Kauai, and when he lost that case, appealed again to the Intermediate Court of Appeals. A panel of three judges recently affirmed the lower court ruling in the state's favor.

Pflueger’s attorney argued the federal consent decree wiped out the state's administrative case against him, but the Intermediate Court of Appeals dismissed those claims, noting two state departments – the state health department and the state Board of Land and Natural Resources – made distinctly different allegations.

Pflueger may file an appeal with the Hawaii Supreme Court, and the justices could either accept the case, or let the lower ruling stand.

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Amy Marvin owns property with her family at Pilaa.

Pflueger has not had much luck with the Hawaii Supreme Court in recent years.

Before the mud reached the ocean on that fateful day in 2001, homes and property owned by the Marvin family were also covered with mud and debris.  Kauai attorney Teresa Tico represented the Marvins in a civil suit against Pflueger, which was filed in 2002 and settled for an undisclosed amount nearly 6 years later. Pflueger at first refused to turn over his financials to Tico, appealing the court order to the Hawaii Supreme Court, but after losing that appeal, Pflueger was forced to send information.

Pflueger filed another appeal in the Marvin v. Pflueger civil case after Fifth Circuit Court Judge Kathleen Watanabe issued a 44-page precedent-setting decision, in which she upheld the Marvins’ land and water access for their kuleana property. She said Pflueger must provide the Marvins access via his land to the public roadway and to a water-well because his property encases theirs. Pflueger appealed the case to the Intermediate Court of Appeals and the Hawaii Supreme Court and lost in the Hawaii Supreme Court. He was ordered to sign a recorded easement over to the Marvins but so far has refused to sign the paperwork presented by Tico.

Marvin and Tico were responsible for initiating the local and federal investigation into the mudslide at Pilaa. Tico took underwater video that documented the catastrophic damage to the colorful coral reef and vibrant bay. Life in the bay either fled or died under suffocating brown slime. Left behind there was an eerie underwater ghost town.  While some believed the reef would recover, Marvin said the muddy banks on the beach fronting her home are still exposed. And Tico, who annually videos the condition of they bay, says that all these years later, the bay has deteriorated considerably.

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Aurora Fehring Dingwall, Alan Dingwall and their son Rowan were killed in the dam breach on March 14, 2006, along with four other people and an unborn child.

Ironically, the EPA announced the plea agreement with Pflueger on March 9, 2006, just 5 days before his dam at Ka Loko breached, allegedly because of illegal grading and grubbing violations he committed in 1998.

The dam, which reportedly overtopped after more than 40 days of rain, unleashed an estimated 400 million gallons of water on the community below. Seven people were killed including an expectant mother. The waves, which reached as high as 40 feet, also caused millions of dollars in property damage.

Pflueger settled the civil suits filed against him by those who lost loved ones, and property, in the breach. But he is months overdue on pay his portion of the damages, with the exception of interest on the settlement.

Pflueger was also charged criminally in November 2008 with 7 counts of manslaughter and one count of reckless endangerment for causing the deaths of 7 people. He is still fighting those charges. He has made multiple appeals to Hawaii’s higher courts to delay the criminal case, and he lost all of those appeals in both the and Intermediate Court of Appeals and Hawaii Supreme Court.

In an exclusive interview after the dam breach, Pflueger denied that he either covered the dam’s main safety feature, its spillway, before it breached, or ever saw a spillway.  He blames the breach on the state for its lack of dam inspections and his reservoir manager for poor maintenance of the dam.

This conflicts with testimony by Kauai realtor Mike Dyer, who told Hawaii Reporter that when he saw illegal grading at the dam and reservoir in the late 1990s, he warned Pflueger that covering the spillway was dangerous. Dyer also took photos and sent a letter to the Department of Land and Natural Resources to document his concerns. No action by either Pflueger or the state was taken.

In addition to fighting the state administrative fine for Pilaa as well as the criminal charges against him for the deaths caused by the dam breach, Pflueger faces federal tax evasion charges.

His son, accountant and staff from his Pflueger auto dealership have already pled guilty to related charges, but Pflueger continues to deny wrongdoing. He is set to go to trial in 2013 on both state manslaughter charges and the federal tax evasion charges.

 

Short URL: http://www.hawaiireporter.com/?p=252244

8 Comments for “Appeals Court Upholds State's $4 Million Fine Against Kauai Landowner James Pflueger”

  1. Malia check your headline out, the mudslide was not in 2001 it was 2006, my wife, myself and our friends were in Princeville when it happened. We have friends in the area, and we were concerned for their safety. Check your proof reading.

  2. Actually you need to check your facts. This mudslide happened on November 26,2001 at Pila'a. My family of 7 had to evacuate in the night to avoid being buried. Luckily we were awake at the dinner table and were able to get away, unlike the disastrous event in 2006 where we DID lose friends when the Kaloko Dam overtopped flooding the Kahili Valley. You are correct that both were "alledgedly" caused by the same landowner. Our lives are affected to this day by the Pila'a mudslide. Our family has owned the kuleana at Pila'a since 1964 and we are surrounded by property owned by this convicted felon.

  3. In he rich pageantry of Life we all have made mistakes: Some of minor consequence some extremely significant as in the case at hand. The cumulative violence of this man's actions, not merely to the environment, but to the distress and pain he has imposed upon the lives of so many is unconscionable. Yes we are Human we err it is intrinsic to this condition. It is also very Human to confess, to atone and ultimately to make right the harm we have caused. To the degree that recompense can undo that which cannot be undone. Death. Henry David Thoreau said. "I do by conscience what others are required to do by Law". Fortunately in the instance at hand there is the Law, as Pfuegar has shown absolutely no evidence of conscience. That he has failed to hand over title and the right of easement to the Marvins for ingress and egress as mandated by the Court is instructive to the lack of character of this person. He should be fined and jailed, held in contempt for each day he fails to comply with this court order: I feel no compassion at all for Pfluegar, none, which is commensurate with the compassion he has displayed. And whether the courts find him in contempt, though relevant, I hold him in the utmost contempt. He should be jailed immediately. And should experience the hell of that status throughout the delays he and his attorney's have orchestrated. He should inherit the mercy commensurate with the Mercy he has shown. And that would be no Mercy. I am not a vindictive human, though it would appear I am. Words cannot address, confine, nor constrain the lack of compassion, empathy, or the callous nature of this Man. My heart aches for those who have endured the whirlwind of Hell this man has visited upon them. And I wish each of them to be wrapped in a great Peace and that the Universe embrace them in warmth and the warm fragrant winds kiss their cheeks and dry their tears and quiet their fears. As to Pfuegar, there is no punishment greater than having to live within his own skin, but that is not enough for me. He should be punished as harshly as possible, should take his last breaths in the State Prison.....and he should know, feel, the oppression of being counted, herded, deprived of warmth, touch, and family. It is the reality his actions have wrought and should be the reality in which he is caught...............Aloha to the many victims of this cruel act, to the people and to the Aina........

  4. I have so much respect for Malia's tireless efforts to cover this story from the beginning, Keeping the facts straight, documenting a story that must never for forgotten nor repeated. Teri TIco and Amy Marvin are super heroes, brave and noble in their efforts to protect the land and the waters of our island home. Excellent reporting Malia. Thank you.

  5. It would also be right to mention the Limu Coalition and Kikauea Neighborhood Association who were the plaintiffs in the federal clean water act parts of this case. They worked with Earthjustice attorney David Henkin and fluvial geomorphologist Andy Hood to obtain the rulings in federal court. They both continue their work in monitoring the extensive mitigation plans for the land damage.

  6. I'm so saddened to hear about the Pflueger's, I grew up with them and have always found them to be good and "Jimmy" would always help people, they have such a legendary history in Hawaii, so sad, he really is a good man. I feel for the loss people have suffered(sp), but it just seems way over the top...
    Lenny Rego

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