Jimmy Pflueger indicted in 2008

BY MALIA ZIMMERMAN – Retired automobile mogul James Pflueger, who is charged with 7 counts of manslaughter for recklessly causing the deaths of 7 people when his dam breached in the early morning hours of March 14, 2006, has lost his appeal to the Hawaii Intermediate Court of Appeals, according to an opinion issued June 23, 2011.

Pflueger’s attorneys, who have filed several appeals since their well-known client was indicted by a Kauai grand jury in November 2008, appealed in February 2010 a Fifth Circuit court ruling that allowed the manslaughter case to go forward. Attorney William McCorriston argued on Pflueger’s behalf that double jeopardy, insufficiency of evidence and a vague manslaughter statute should force the state to drop the charges.

The three Intermediate Court of Appeals judges including Associate Judges Daniel R. Foley, Alexa D.M. Fujise and Lawrence M. Reifurth who heard oral arguments in the case in May 2011, denied each of Pflueger’s motions.

At the center of the prosecution’s case is whether Pflueger knowingly covered the dam’s spillway, the dam’s only safety feature, recklessly causing their deaths.

Former State Attorney General Mark Bennett, who argued for the state, knocked down Pflueger’s arguments one by one. He told the three-judge panel that double jeopardy does not apply.

McCorriston argued 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 Bennett pointed out, and the court agreed, that Pflueger’s 2002 violations were specifically for illegal grading on the south side of the reservoir. As numerous witnesses 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.

The Intermediate Court also agreed with the state that there there is more than enough evidence to allow the case to go to trial. As Bennett pointed out to the court in oral arguments, Pflueger was indicted in November 2008 after four days of testimony that included 20 witnesses and 207 exhibits and created a record of 607 pages.

Finally, the court disagreed with Pflueger that the manslaughter statute is vague in how it relates to his case. There were multiple witnesses who told the grand jury that Pflueger created a potentially dangerous situation by covering the 118-year-old earthen dam’s only spillway, Bennett said. He noted in the state’s brief that Pflueger “failed to uncover the spillway right up to the day of the tragic dam breach.”

Bruce and Cyndee Fehring flew from Kauai to attended last month’s oral arguments. The deadly breach sent a tsunami of 370 million gallons of water down the mountain and onto their 6-acre property on Kauai’s North Shore just before dawn on March 14, 2006. The powerful waves that reached at least 20 feet high swept their daughter Aurora Solveig Fehring, son-in-law Alan Gareth Dingwall, and 2-year-old grandson, Rowan Grey Makana Fehring-Dingwall, to their death.

The roaring, raging wall of water also killed 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 Carl Wayne Rotstein, the Fehring’s caretaker and business partner.

Bennett, who brought the case against Pflueger, but now is in private practice, returned to represent the state pro-bono during May’s oral arguments after a mutual agreement with the current attorney general.

Both Bennett, and the current attorney David Louie, said yesterday that they are pleased with the outcome.

“We are  pleased with the ICA’s ruling, and we intend to continue to vigorously prosecute this case,” said Louie.

McCorriston did not return emails from Hawaii Reporter seeking comment.

Pflueger has 90 days to appeal the ruling to the Hawaii Supreme Court, and the court could accept or reject the case and let the lower ruling stand. If an appeal is not filed, or the case is rejected, it will return to Kauai’s Fifth Circuit Court for trial. If the Supreme Court accepts the case, oral arguments would likely be in the spring of next year. Whether Bennett will continue to represent the state in the case has not yet been discussed, he said.

A host of civil cases over the deaths and millions of dollars in damage to homes and farms along the Wailapa River from the massive waves that carried 100 foot trees, cars, homes, furniture, rocks, and other debris through its destructive path, have already been settled. Celebrity Bette Midler was the lead plaintiff in the property damage case. But one attorney in the case told Hawaii Reporter that Pflueger has not yet paid his share of the settlement.

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.

In another unrelated case, 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.”

The U.S. attorney added charges for James Pflueger and his accountant Dennis Duban in connection with James Pflueger’s sale of a property in California. The U.S. Attorney said an estimated $14 million in proceeds “were sent to a bank account located in Switzerland” and that Pflueger failed to disclose the existence of the foreign bank account to the IRS. Duban, a CPA, is also charged with “aiding in the filing of false federal tax returns on behalf of Charles Alan Pflueger (two counts) and James Pflueger (one count).” The trial has been set for November 8, 2011 in the federal tax fraud case.

Editor’s Note: Malia Zimmerman, editor of Hawaii Reporter, was subpoenaed in a Ka Loko Dam breach civil case by James Pflueger and in the criminal manslaughter case by the state attorney general.

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Malia Zimmerman is the editor and co-founder of Hawaii Reporter. She has worked as a consultant and contributor to several dozen media outlets including ABC 20/20, FOX News, MSNBC, the Wall Street Journal, UPI and the Washington Times. Malia has been listed as one of the nation’s top "Web Proficients, Virtuosi, and Masters" and "Hawaii's new media thought leader" by http://www.thewebstersdictionary.com Reach her at Malia@hawaiireporter.com