Ka Loko dam after the breach in March 2006

BY MALIA ZIMMERMAN – It has been more than five years since the Ka Loko Dam breached on March 14, 2006, killing seven Kauai residents and causing hundreds of millions of dollars in property damage.

James Pflueger, the man who the state says is responsible for causing the dam’s collapse by illegally covering the primary safety feature, the dam’s spillway, was indicted on 7 counts of manslaughter and one count of reckless endangerment in November 2008.

Defense attorneys for the 85-year-old retired automobile mogul have filed numerous appeals since their client’s indictment, successfully delaying his trial for more than 18 months.

James Pflueger

But the Hawaii Supreme Court on November 22 dismissed what is likely Pflueger’s most important appeal to date, in which he claimed double jeopardy, insufficiency of evidence to go to trial and vagueness in how the manslaughter statute applies to his case.

Defense attorney William McCorriston argued before the state’s lower courts that Pflueger’s history of illegal grubbing and grading on his Kauai property without proper permits – and his subsequent prosecution by the state for those violations – should prevent his client from being prosecuted.

But former attorney general Mark Bennett, who brought the charges against Pflueger in 2008 and continued to argue on the state’s behalf after leaving his state post, pointed out that Pflueger’s 2002 violations were specifically for illegal grading on the south side of the reservoir.

Mark Bennett

As numerous witnesses and Bennett noted, the illegal grading that allegedly caused the dam breach happened in 1997 and 1998 on the opposite side of the reservoir or the north side.

William C. McCorriston

McCorriston also argued insufficient evidence to proceed to trial, but Bennett pointed to 20 witnesses, 207 exhibits, and 607 pages of documentation, saying this is more than enough to move forward.

The defense’s argument that the manslaughter statute is vague in how it relates to Pflueger’s case also was successfully countered.

With the Hawaii Supreme Court’s unanimous dismissal of all three claims, the case will be referred back to Kauai’s 5th Circuit Court and scheduled for trial early next year.

While Pflueger’s attorneys have hinted that they might file other challenges, legal analysts familiar with this case say Pflueger’s legal team is running out of options.

In addition, Pflueger has other court battles and mounting legal bills to contend with.

James Pflueger, his son Charles Alan Pflueger, his accountant, Dennis Lawrence Duban and his employees, Julie Ann Kam and Randall Ken Kurata, were indicted on September 5, 2010, on charges of “conspiracy to defraud the United States for the purpose of obstructing the Internal Revenue Service in its collection of taxes” and the case is set for trial in May 2012. The U.S. attorney also charged Pflueger and his accountant Dennis Duban in connection with hiding $14 million in a Swiss bank account. The federal trial, which was originally set for November 8, 2011, has been postponed until May 2012.

Pflueger may still face other legal matters related to the deadly 370 million gallon breach, which killed Aurora Solveig Fehring, her husband Alan Gareth Dingwall, and their 2-year-old son, Rowan Grey Makana Fehring-Dingwall, along with Christina Michelle McNees, who was 7 months pregnant, and her fiance Daniel Jay Arroyo, and Timothy Wendell Noonan, Jr. and Carl Wayne Rotstein.

Property and death damage claims filed against Pflueger, his family trust, the state, the county and private companies, were litigated in a civil case that was settled for an estimated $25 million in 2009, and there may be another $25 million settlement for the victims from an insurance company. However, Pflueger has not yet paid his share of the settlement, and in fact, is in default as of September 1.

Pflueger has another appeal pending before the Hawaii Intermediate Court of Appeals. Just before the Ka Loko breach, 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. Pflueger continues to appeal matters in a civil case related to the Pilaa flood.

 

Hawaii Reporter editor Malia Zimmerman was subpoenaed in the Kaloko Dam breach civil and criminal cases by both the defense and prosecution respectively.

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