BY MALIA ZIMMERMAN – Bruce and Cyndee Fehring leaned close to each other as they listened to oral arguments presented on Wednesday to the Hawaii Intermediate Court of Appeals by former State Attorney General Mark Bennett and defense attorney William McCorriston relating to manslaughter charges filed against James Pflueger for his Ka Loko dam breach.
The Fehrings have a great deal invested in the evidence presented. The deadly breach sent a tsunami of 370 million gallons of water down the mountain and onto the Fehring’s 6-acre property on Kauai’s North Shore just before dawn on March 14, 2006.
The powerful waves that reached 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.
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 the deaths of those 7 people.
Kauai 5th Circuit Judge Randal Valenciano allowed the state’s case to go forward, but McCorriston claimed the state did not introduce “a single piece of evidence” to show that Pflueger “consciously disregarded a substantial risk that the dam would breach and cause the death of another person.”
McCorriston, who has successful filed several motions delaying the trial, told the three-judge panel including Associate Judges Daniel R. Foley, Alexa D.M. Fujise and Lawrence M. Reifurth that he wants the seven counts of manslaughter thrown out. He blames the state, county, reservoir manager and former dam owner for the breach, and cites among the reasons for his client’s innocence, double jeopardy, sufficiency of evidence and frivolously vague charges.
Pflueger had no reason to know that any people lived or worked below his reservoir in the path of the breach, McCorriston maintained, shocking those in the hearing by referring to the victims as “squatters in huts.”
In another twist, Pflueger’s attorneys claim that he cannot be held responsible for the death of 2-year-old Rowan, because the toddler was born in 2004, years after Pflueger is accused of covering the spillway.
However Bennett, who through a mutual agreement with the newly appointed attorney general David Louie is continuing to prosecute the case at no cost to the state, said that Pflueger knew there were people living and traveling below his property including farmers who get water from the reservoir, drivers on the highway, and residents in Kilauea. He dismissed the claim about Rowan.
Bennett said there is more than enough evidence to allow the case to go to trial. His brief noted that Pflueger was indicted after four days of testimony that included 20 witnesses and 207 exhibits and created a record of 607 pages.
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 noted in the state’s brief that Pflueger “failed to uncover the spillway right up to the day of the tragic dam breach.”
Pflueger covered the spillway when he leveled a nearby hill with heavy equipment to prepare the land for a home, the state’s brief said.
About Pflueger’s plan, the brief said: “Architect Conrad Schmidt told defendant that the site was unsuitable, and that the construction would require moving a tremendous amount of dirt in the precise area where the spillway was located. Defendant was unphased. When told that in order to build such a home site he might have to cut down the entire hill, defendant’s response was: ‘If that’s what is needed to be done, then that is what he would do.’”
An earlier report commission by Pflueger’s family trust, the Mary Lucas Trust, for which Pflueger once served as the co-trustee, showed the property was worth $9 without homes and up to $68 million if a condominium site was approved.
Remarkably, Pflueger’s history of grubbing and grading on his Kauai property without proper permits was used by McCorriston as justification for the case to be dismissed.
In 2002, Kauai County prosecuted Pflueger for illegally “moving dirt without a license” on the reservoir’s south side and fined him. McCorriston said prosecuting him again for the same crime is double jeopardy. But Bennett pointed out that the violation took place in 2002, years after Pflueger reportedly covered the spillway in 1997, and it was on the opposite side of the large reservoir.
Incidentally, the south side of the reservoir is where Pflueger built a white sand beach. The state said Pflueger kept the water level high for aesthetic and recreational purposes by “turning off the water to downstream (farmers) users because in his view the water level in the Reservoir was not high enough.”
Ironically, 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.
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, a wealthy and influential retired automobile dealer who founded Pflueger Auto and has several dealerships, did not make an appearance in court, but his long time girlfriend, Cindy Foster, was there along with their team of attorneys.
There is no firm timetable set for the Intermediate Court of Appeals ruling. Either side could appeal the case to the Supreme Court, but the court can let the lower court’s ruling stand.
Bennett told the Intermediate Court of Appeals on Wednesday that even if they rule in the state’s favor and allow the manslaughter case against Jimmy Pflueger to go forward, Pflueger succeeded in getting something he wanted – another delay to his prosecution.
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