Ka Loko dam after the breach in March 2006

Mark Bennett, who served as state attorney general under Gov. Linda Lingle, will return today on the state’s behalf to argue before the Intermediate Court of Appeals.

The case: James Pflueger, retired Hawaii automobile mogul, is appealing manslaughter charges brought against him by the state after his Ka Loko Dam breached in March 14, 2006, killing Kauai North Shore residents Alan Gareth Dingwall, Daniel Jay Arroyo, Rowan Grey Makana Fehring-Dingwall, Aurora Solveig Fehring, Christina Michelle McNees and her unborn child, Timothy Wendell Noonan, Jr. and Carl Wayne Rotstein.

A Kauai grand jury indicted Pflueger in November 2008 on 7 counts of manslaughter and one count of reckless endangerment.

The issue at the center of the case is what caused the dam 5 years ago to unleash an estimated 370 million gallons on the peaceful country community below. Was it an act of God or was this a man-made tragedy?

Kauai Realtor Mike Dyer, a key witness in the case, said he warned Pflueger in 1997 on two separate occasions that Pflueger had covered the spillway and that could lead to devastating consequences. He is one of a handful of witnesses who say they warned Pflueger that he’d covered the spillway.

The secret grand jury, who heard from Dyer, reviewed 207 exhibits, listened to 19 other witnesses over four days from November 18 to 21, 2008, resulting in a record of 600 pages, they agreed unanimously to indict Pflueger on November 21, 2008 on 7 counts of manslaughter and one count of Reckless Endangerment in the First Degree.

Bennett contends that Pflueger illegally graded around his reservoir and dam, and knowingly covered a spillway, which could have safely release water from the reservoir before it collapsed.

Bennett left the attorney general’s office after Gov. Neil Abercrombie took office in December 2010. By mutual agreement with David Louie, the current attorney general, Bennett, who is now in private practice, will continue at no charge to the state to prosecute the case. He will present oral arguments on the state’s behalf and William McCorriston will represent Pflueger.

Bruce and Cyndee Fehring, who lost their daughter Aurora, their son-in-law Alan and their 2-year old grandson Rowan, are expected to fly from Kauai to attend the court proceeding.

Pflueger’s legal team, headed up by well known defense attorney William McCorriston, maintain their client’s innocence, and blame the state, the county, the reservoir manager and former dam owner, and others for the breach. Pflueger’s attorneys also claim that he cannot be held responsible for the death of Rowan, because Rowan, who would have turned 2 years old just after the breach, was born in 2004, years after Pflueger is accused of covering the spillway. The state said Pflueger’s act led to the death of all of these people in 2006 and the charges should stand.

Pflueger’s attorneys filed for several delays, the latest being that appeal to the Kauai 5th Circuit Court rulings by Judge Randal Valenciano that allowed the case to go forward. Pflueger’s attorneys say the manslaughter charges should be dropped because of double jeopardy and sufficiency of evidence.

The double jeopardy claim is referring an earlier prosecution of Pflueger by the county for illegal grading around the reservoir.

Before the breach, the county cited Pflueger for unpermitted grading on the other side of the 43-acre reservoir, and he was fined. Pflueger’s attorneys said he cannot be prosecuted again for illegal grading at his reservoir. But the state said the deaths, which they maintain were caused by illegal grading on the other side of the reservoir had not happened when Pflueger was prosecuted for moving dirt without a license.

In a separate case, Pflueger was prosecuted in 2006 by the EPA, State Department of Health and County, for 10 felony counts for illegal grading and grubbing and pollution of the pristine Pilaa Bay on Kauai in the year 2001, in what would be the most serious and significant criminal environmental case in Hawaii’s history. He had fines and restoration requirements totaling $12.5 million. Just days after Pflueger conviction related to Pilaa, the Kaloko dam breached. His family trust, the Mary Lucas Trust, also was brought into the case because they own part of the land under the dam and reservoir. He had managed the trust with his cousin on the family’s behalf, until his niece, Christiane Lucas, through a series of legal challenges, had them both removed.

 

Note: Hawaii Reporter editor Malia Zimmerman was subpoenaed in both the civil and criminal cases related to the dam breach. While the civil action has been settled, the criminal trials continue

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