BY MALIA ZIMMERMAN – LIHUE, KAUAI – When the 118-year-old Ka Loko Dam on Kauai’s north shore breached just before dawn on March 14, 2006, powerful waves released 400 million gallons of water from its reservoir and swept 7 people and an unborn child to their death and caused millions of dollars in property damage.
James Pflueger, the owner of the land under the dam, was indicted on seven counts of manslaughter and one count of reckless endangerment in the first degree in November 2008 after witnesses said he illegally graded around the dam and covered its main safety feature, a concrete spillway, causing it to overtop and breach during heavy rains.
Pflueger, an 87-year-old retired auto dealer with assets of $71 million, was able to use his power, wealth, influence and political connections to delay his criminal trial for years through multiple appeals.
On Thursday, July 18, the years of delays and appeals came to a sudden halt when Pflueger pleaded “no contest” in Kauai’s Fifth Circuit Court to one count of reckless endangerment in the first degree, a class C felony.
As a part of his plea deal with the state attorney general, Pflueger’s company, Pacific 808 Properties LP, pleaded “no contest” to the seven manslaughter charges. The company will pay the maximum of $50,000 for the death of each of the seven victims or a total of $350,000.
The victims’ families won’t see a penny of that money, however. The $350,000 will go to the state coffers, set aside for state safety inspections of Hawaii’s private and public dams as is required under Hawaii law every 5 years.
Bruce and Cyndee Fehring lost their daughter Aurora Solveig Fehring, son-in-law Alan Gareth Dingwall, and 2-year-old grandson, Rowan Grey Makana Fehring-Dingwall, before sunup on March 14, 2006, when the raging water filled with debris smashed into the their 6-acre property.
Christina Michelle McNees, who was 7 months pregnant, and Daniel Jay Arroyo, her fiancé, who she was set to marry just hours later; Timothy Wendell Noonan, Jr., a friend who Aurora invited to stay with them after he lost his home; and Wayne Carl Rotstein, the Fehring’s caretaker and business partner, were also staying on the Fehrings’ property and were killed.
Bruce Fehring said on Thursday he’s thankful the years of legal battles are nearly over, pending Pflueger’s sentencing on January 23, 2014, but he’s extremely disappointed with the outcome of the deal that lets Pflueger off with what could turn out to be only probation after causing the deaths of seven people.
“To have the company take responsibility for the manslaughter charges is ridiculous. Corporations cannot be put in prison – they are not people – and the $350,000 fine is most likely not a significant amount to Mr. Pflueger,” Fehring said.
The $50,000 per victim isn’t enough of a penalty for manslaughter, Fehring said.
“Lawmakers have written a law that says a life is worth at most $50,000 in Hawaii. That is outrageous – outrageous,” Fehring said.
“10-time convicted felon”
This isn’t Pflueger’s first run in with the law.
In 2006, just days before the Ka Loko Dam breached, Pflueger was convicted in state court on 10 felony counts. The criminal convictions were related to his illegal grading and grubbing around his private property surrounding Pilaa Bay, just a few minutes drive from his Ka Loko property. More than 1,000 tons of mud and debris streamed into the ocean in 2001, and wiped out a coral reef that was set to be designated a preserve.
The Marvin family, who lived on the edge of Pilaa Bay, was able to flee the mudslide in time to escape injury, but their homes and cars were swamped in mud.
Pflueger pleaded guilty in that case to 10 felony counts, and was ordered to pay millions of dollars in fines and restoration costs and was put on probation for 5 years.
In Ka Loko case, witnesses testified Pflueger knowingly covered the dam’s spillway, when in 1998 without permits, he illegally flattened a hillside and placed dirt around the reservoir to prepare for home construction. Pflueger has consistently blamed the state and county and the water systems manager for the breach.
State Attorney General Mark Bennett headed Pflueger’s prosecution in both the Pilaa pollution case and the Ka Loko manslaughter case, but was replaced as is customary when a new governor was elected in 2010. It was the new attorney general, David Louie, who offered Pflueger a deal that some say let him walk away without consequences.
“I wish Mr. Pflueger no ill will. I know he is going to die and meet his maker and get his ‘come up,’ said Bruce Fehring. “But this is about more than that. This is a signal to all wealthy and powerful people here in Hawaii that they can do what ever they want and buy their way out of it; that the wealthy and powerful in Hawaii can escape prison, even if prison is warranted, and that they are not going to be held to the same standard as the average guy on the street.”
Is Mr. Pflueger too big to prosecute, too important, too big to fail? Fehring asked.
“The attorney general is sending the wrong signal. No one is too big to fail. There have to be consequences when someone hurts so many lives and causes so much grief and damage to property,” Fehring said.
When Kauai’s Chief Judge Randal Valenciano sentences Pflueger on the reckless endangerment felony charge in January, Fehring said he hopes the judge will be independent and consider Pflueger’s history, records, the severity of his crimes, the huge loss the victims have suffered and the number of people he has impacted. Pflueger deserves jail time, Fehring said, especially because he was convicted on 10 felony counts in 2006 resulting from similar illegal grading actions.
“We have a rule of law in this country. Justice is supposed to be blind to power and money. The wealthy and powerful should not be able to buy their way to justice,” Fehring said.
Teresa Tico, the attorney who sued Pflueger civilly in the Pilaa and Ka Loko cases on behalf of the victims and helped get Pflueger prosecuted in both cases, said after years of court battles, she is glad there is some closure.
“If we went to trial, the outcome would have been uncertain and the case and resulting appeals could carry on indefinitely,” Tico said.
Pflueger will serve 5 years probation, and at the sentencing hearing, the State could seek to have the Court impose community service, a fine and imprisonment for up to one year, the attorney general said in a statement.
“Why agree just to probation when Mr. Pflueger is a 10 time convicted felon and a repeat offender? Hopefully the judge will have a sense of justice and will sentence Mr. Pflueger to the maximum term,” Tico said.
There are still issues unresolved related to the breach.
Pflueger is nearly three years overdue in paying a multimillion dollar cash settlement to the victims of the Ka Loko dam breach who sued him after losing loved ones and property.
In addition, Pflueger has refused to repair the Ka Loko dam since it breached more than 7 years ago, despite numerous warnings and assessments from the state Department of Land and Natural Resources dam inspectors.
Malia Zimmerman, editor of Hawaii Reporter, had her notes, sources and unpublished materials subpoenaed by James Pflueger after the victims who lost loved ones and property sued him in state civil court. Hawaii lawmakers enacted a journalism shield law in 2008 that prevented Mr. Pflueger from deposing Zimmerman. Zimmerman was also subpoenaed to testify before the secret grand jury by the state attorney general in November 2008. Mr. Pflueger granted one interview, and that was with Hawaii Reporter several weeks after the dam breach.