BY MALIA ZIMMERMAN – LIHUE, KAUAI – More than eight years after the Ka Loko Dam breached on Kauai’s North Shore killing 7 people and an unborn child, James Pflueger, the man the state said was responsible for causing the breach, was sentenced to 7 months in prison.
Deputy attorney general Vince Kanemoto told Kauai’s Chief Judge Randal Valenciano that the 88-year-old retired auto dealer covered the dam’s main safety feature, its spillway, leading to the breach.
The deadly breach sent a tsunami of nearly 400 million gallons of water down the mountain, onto the Fehring family’s 6-acre property on Kauai’s North Shore, just before dawn on Tuesday, March 14, 2006. The powerful waves that reached more than 20 feet high not only swept 7 people to their death, but also caused millions of dollars in damage to property and the environment.
Pflueger still denies responsibility, but after battling the state over the charges for more than 6 years, and reportedly spending some $50 million on his legal defense, he pleaded no contest to a felony Reckless Endangerment charge in July 2013.
In a much criticized plea deal, the attorney general allowed Pflueger’s company, Pacific 808 properties, to take responsibility for the 7 counts of manslaughter originally filed against Pflueger after he was indicted in November 2008 by a secret grand jury that had reviewed 207 exhibits and listened to 20 witnesses over four days, resulting in a record of 600 pages.
Kanemoto asked the judge to sentence Pflueger to one year in prison and 5 years probation for the Reckless Endangering charge. He pointed out Pflueger had not learned his lesson after causing a devastating mudslide at Pilaa beach by illegal grading another of his Kauai properties in 2001, which led to 1,000 tons of mud and debris going into the ocean during a heavy rainstorm. In 2006, just 6 weeks before the dam breached, Pflueger was sentenced on 10 felony counts related to pollution of the pristine Pilaa bay.
“The reckless conduct was him (Pflueger) covering the spillway. And leaving it covered despite warnings from Tom Hitch (the water system manager), from Mike Dyer (local realtor), despite the Pilaa fiasco that happened, and then he was sentenced for 10 felony offenses for water pollution. He should have known better,” Kanemoto said.
In the case of Ka Loko, Pflueger showed no remorse or penance, Kanemoto said, and in fact, blamed others.
“… Seven people died here. It’s really troubling that he is trying to shift the blame to others for the reckless conduct that he engaged in that caused the breaking of the Ka Loko reservoir and dam that resulted in the deaths of seven people,” Kanemoto said.
Bruce Fehring, who lost his daughter Aurora Solveig Fehring, his son-in-law Alan Gareth Dingwall, and 2-year-old grandson Rowan Grey Makana Fehring-Dingwall, in the breach along with four family friends staying on the property, was the only victim who spoke in court.
Pflueger has never apologized, has had a complete lack of remorse, Fehring said, and has tried to intimidate him by writing him several letters, including one as recently as September 18, in which he blames Fehring and others for the 7 deaths.
“I personally do not believe the defendant is capable of remorse,” Fehring said.
The most recent letter to Fehring said: “From what I read in print you should be ashamed of yourself. (Mike) Dyer sells you property in a flood zone – you build and put your children and workers on the flood zone – you and Dyer were fine – (Tom) Hitch too – until the break. Then it was my fault. You and Dyer dumped your guilt on me.”
Fehring countered in court that Pflueger “selfishly and dangerously” filled in the dam’s emergency spillway so that the water level rose to the brim of the reservoir in order to enhance both his personal recreational opportunities and the value of his planned home sites around the reservoir.
The deep love for their daughter Aurora, son-in-law Alan, and 2-year-old grandson Rowan, and the four others who died that day, is “aching and undiminished,” Fehring said.
“It would be wonderful to be able to see them, talk to them, hug them, work with them, and play with them. Those pleasures have been lost to us because of the careless, selfish, and dangerous actions of the defendant,” Fehring said.
Pflueger finally speaks publicly about the breach
It’s been more than 8 years since Pflueger said anything publicly about the breach, except for one exclusive interview he did with Hawaii Reporter.
During his 3-minute statement, Pflueger cried and said not a day that goes by that he is not reminded of the tragedy.
He maintained he tried to bring attention about the dam’s disrepair to the state’s Public Utilities Commission, and also said he had no authority to repair the dam because he wasn’t the water system manager, C Brewer and Kilauea Irrigation Company was.
“Tragically, however, my constant calls over the years were ignored,” Pflueger said.
Pflueger talked about the impact the breach had on him and his family.
“There is a lot of pain in this court room today for all of us. Since that horrible day on March 14, 2006, there has been 8 years of headache for my family. I have sold nearly all my assets to pay for the legal and settlement costs.”
Despite claims by Pflueger and his attorneys that he wasn’t responsible for the breach, Chief Judge Randal Valenciano said Pflueger was a central figure and bears a great deal of fault.
The judge noted Fehring called Pflueger a “bully.” The judge said Pflueger is a “business bully” and noted Pflueger appeared to believe he is above the law.
Resolution, Justice Delayed for Years
Pflueger battle with the state and victims went on for more than 8 years.
The breach occurred in March 2006. He was indicted in November 2008 by then state Attorney General Mark Bennett, but successfully orchestrated numerous delays for the next 6 and a half years.
Pflueger’s attorneys argued during sentencing that several parties were involved in the causing the breach, and Pflueger was the scapegoat.
They claimed Tom Hitch, the manager of the water system, who was in charge of taking the state owned water from Ka Loko to area farmers via Pflueger’s property, was responsible because he left the dam in disrepair and didn’t check water levels during the storm, Pflueger’s attorneys maintained.
Hitch, however, said in his deposition that Pflueger locked him out of the Ka Loko property and threatened to harm him if he violated Pflueger’s order.
Pflueger’s attorneys also claimed C Brewer, the previous owner of the dam and reservoir, did not disclose there was more than $2 million in back maintenance and repair on the dam when Hitch took it over just weeks before the breach.
Pflueger’s attorneys said the state was responsible for the breach because state dam inspectors with the Department of Land and Natural Resources never inspected Ka Loko although they are required to do so every 5 years under Hawaii law.
However, the public records show state inspectors were unable to get a response from Pflueger when requesting access to the dam. They could have done so without permission of the owner, but didn’t in time.
The county also had responsibility to ensure the dam was safe, Pflueger’s attorneys argued. But this claim can also backfire on Pflueger.
Public records show Kauai County received an anonymous complaint that Pflueger was grading without permits in 1997, the year he allegedly covered the spillway.
A county engineering inspector checked the site from afar and told Pflueger to “stop work immediately.” But Pflueger didn’t stop. Instead, the inspector was called in by then Mayor Maryanne Kusaka and told to stay away from Pflueger.
Pflueger told Hawaii Reporter in an exclusive interview he gave a large contribution to the mayor. He said that he handed Kusaka $9,000 in cash hoping he would get the harassing inspectors 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 it in the names of eight of his employees, but he claimed there was no deal.
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.”
Remarkably, Pflueger and his attorneys also blamed Bruce Fehring for the seven deaths, alleging he built unpermitted structures in a flood zone.
However, public records show the county had permitted the Fehrings’ house and cleared them of any unpermitted activity.
There were some small structures in the flood zone but they were under 100 square feet and not required to be permitted. There is no evidence any one of the people who died stayed in those units.
Surprises in Court
Under a new attorney general, David Louie, Pflueger accepted a plea offer in July 2013.
Pflueger’s company, Pacific 808 Properties, agreed to a $50,000 fine for each of the seven manslaughter counts against the company for a total of $350,000 that would go to the state.
However, Valenciano said the court would not allow the business to “shield Mr. Pflueger from being responsible.”
“I am not viewing the business as the responsible party. I am viewing Mr. Pflueger as the responsible party in that Mr. Pflueger is the one who accepted ultimate responsibility,” Valenciano said.
While Valenciano sentenced Pflueger to five years probation with jail time of seven months as a condition of probation, he also reduced the fines against Pacific 808 Properties to $1,000 per count.
“I know that Mr. Pflueger deposited monies into the court system for today’s proceedings. But I am not going to use that money. And I am not going to use it in the way the state suggested. I don’t want to give the impression that this court is being bought today,” Valenciano said.
“The decision by Judge Valenciano brings to a close the State’s criminal proceedings against Pflueger and his company, Pacific 808 Properties, LP,” said Attorney General Louie. “Today, justice has been done.”
Off to Prison
Pflueger appeared stunned at the conclusion of his hearing. He repeatedly asked his attorneys to confirm he was in fact going to prison. He was even more startled when the judge ordered the state sheriff escort him immediately to the Kauai prison to begin his sentence.
Bill McCorriston, Pflueger’s lead attorney, asked the judge for a three-week delay so that Pflueger could visit his doctors. Another of his attorneys, Mark Zenger, asked Pflueger be on home detention. The judge denied the requests.
They will file a motion for reconsideration, McCorriston said after the hearing.
Many in the community are critical of the judge’s sentence, noting that Pflueger will only serve 7 months in prison – and his company will pay just $1,000 per person – for causing the deaths of 7 people.
However, Bruce Fehring said Wednesday that he feels the court heard his remarks.
“I had a moral responsibility to ask for justice for the dead, for our community, which was traumatized, the land that was scarred, the waters which were muddied, the beaches and the reefs which were damaged,” Fehring said. “We believe justice has been served.”