BY MALIA ZIMMERMAN – KILAUEA, KAUAI – Eight years ago just before dawn, the Ka Loko Dam on Kauai’s north shore breached, sending a forceful 370 million gallons of water crashing down on the community sleeping peacefully below.
After more than 40 days of rain that drenched the island, the Ka Loko Reservoir reached its maximum capacity, and with no safety system in place on the 118-year-old earthen structure, the dam overtopped and blew.
Without warning or time to escape, the deadly force slammed into the Fehring family’s 6-acre property, sweeping Aurora Solveig Fehring, her husband Alan Gareth Dingwall, and their 2-year-old son, Rowan Grey Makana Fehring-Dingwall, from their beds to their death.
Christina Michelle McNees, who was 7 months pregnant, and Daniel Jay Arroyo, her fiancé who she was set to marry just hours later, died after being pummeled by debris.
Wayne Carl Rotstein, the Fehring’s caretaker and business partner, and Timothy Wendell Noonan, Jr., a friend of Aurora’s who had been staying with the Fehrings after becoming homeless, also were killed.
“The pain of that fateful morning will never leave the collective memory of our community,” said Amy Marvin, whose family helped in the rescue efforts that day, as did many other friends and neighbors.
Eight years later, James Pflueger – the man the attorney general accused of causing the breach and charged with seven counts of manslaughter and one count of reckless endangerment in November 2008 -– is still free.
Then State Attorney General Mark Bennett maintained Pflueger intentionally covered the dam’s main safety feature, its spillway, without proper permits or authorization, which led to the dam breach.
A Kauai grand jury, which heard from 20 witnesses and reviewed 207 exhibits and 607 pages of documentation, believed there was enough evidence to go to trial.
Pflueger maintained his innocence, entered a plea of not guilty on January 7, 2009, and took his case all the way to the Hawaii Supreme Court multiple times to stop the criminal prosecution. However, the Intermediate Court of Appeals and Hawaii Supreme Court denied his appeals.
Ranked as one of Hawaii’s wealthiest residents with assets of $71 million, Pflueger has reportedly paid his defense attorneys more than $46 million to keep him out of prison.
Pflueger’s legal team negotiated years of legal delays successfully pushing off his trial, and finally landing their 87-year-old client a plea deal in 2013 that left family members who lost loved ones stunned.
Attorney General David Louie, who replaced Bennett when Gov. Neil Abercrombie was elected, facilitated a deal in July 2013 that allowed Pflueger to plead no contest to reckless endangerment in the first degree for causing the deaths of seven people.
Meanwhile Pflueger’s company, Pacific 808 Properties LP, was allowed to take responsibility for the seven manslaughter charges and will pay a fine of $50,000 for each person’s death. The money will go to the state, not the victims.
Pflueger is set to appear in Kauai’s Fifth Circuit court on April 10 at 10 a.m. before Chief Judge Valenciano.
Bruce Fehring, who lost his daughter, grandson and son in law in the breach, as well as his property’s caretaker, said the anniversary is all the more painful because there has been no resolution in the case, and the legal delays seem endless.
“If people with wealth and power can harm other people without repercussions, what does that say about our justice system?” Fehring asked.
Pflueger’s also never apologized to the Fehrings for the breach, which besides killing their loved ones and friends, also caused severe property damage and destroyed their home.
“He wrote me two letters saying he is not responsible for the breach and blamed others. Come on, give me a break, there were eye witnesses that said the spillway got covered up,” Fehring said.
The Fehrings’ grandson Rowan’s second birthday is April 2, and he would have turned 2 years old, two weeks after the breach. Today, he would be turning 10.
“Losing a child is difficult and but losing a grandchild may be even harder. They are our legacy for the future. Rowan would be 10 years old. It is hard when I look at other 10 year old children, and when other people talk about their grandkids, because even though I am happy for them, I know I have a grandson too,” Fehring said.
Maryanne Kusaka is another person who has escaped consequences, Fehring said.
She was the mayor in the late 1990s when Pflueger reportedly covered the spillway when he illegally graded and grubbed around the reservoir to prepare the land for home sites.
An anonymous complaint to the Kauai County that Pflueger was grading without permits in 1997 was largely ignored by her administration.
John Buist Jr., a county engineering inspector, checked the site from afar and told Pflueger to “stop work immediately.”
But Pflueger didn’t stop. Instead, the Buist was called into see Kusaka, and according to county documents, was clearly told to stay away from Pflueger.
Pflueger told Hawaii Reporter in an exclusive interview on Kauai that he gave a large contribution to the mayor – $9,000 in cash – in hopes he would get the harassing inspector off his back.
After some prodding, Pflueger confirmed the contribution in a follow up interview with “ABC 20/20″’s Jim Avila saying he hid the cash in the names of eight of his employees, but he claimed there was no deal with the mayor.
According to state campaign law, Pflueger cannot donate more than $4,000 to Kusaka in an election cycle.
Kusaka did not report the contribution, and denies she received it: “Absolutely not, not that I’m aware of.”
Neither was prosecuted by the state for the alleged illegal contribution. Maryanne Kusaka, no longer in political office, continues to sell real estate and was never charged. Her administrators, for the most part, still live on Kauai. Her inspector, John Buist, quit his job and moved to Maui. He was subpoenaed to testify in the civil case.
“She may have not directly filled in the spillway, but she turned her head away. She would not have done that for us, but she would do it for Jimmy Pflueger,” Fehring said.
Fehring said he hopes the sentencing does go forward on April 10 so they can finally see a resolution in the criminal case.
“Every day people are incarcerated for crimes that pale in comparison to what Pflueger did. This is an indictment of our legal system that he can avoid justice as long as he has. I hope Judge Valenciano can see through all the nonsense and put Pflueger in jail for at least a year,” Fehring said.