Jimmy Pflueger indicted in 2008

BY MALIA ZIMMERMANFred Trotter, who served as President of F. E. Trotter Inc., Trustee of The Estate of James Campbell, and as directors of such boards as the Rehab Hospital Foundation, Maui Land and Pine and Hawaii Management Alliance Association, issued an open letter “to the people of Hawaii” in a full page advertisement in the state’s daily monopoly Star-Advertiser this Sunday on behalf “friends of Jimmy Pflueger.”

It was an unconventional and expensive tactic to bring attention to the fact that he and other supporters of Pflueger believe that the well-connected retired auto dealer is being wrongly “persecuted” on manslaughter charges by the state attorney general related to the March 14, 2006 breach of his Ka Loko Dam on Kauai. Trotter, who is chairman of “Friends for Jimmy Pflueger” mirrors the legal arguments of Pflueger and Pflueger’s defense attorneys.

“Our friend, Jimmy Pflueger, is being persecuted, not prosecuted, for the Kaloko Dam failure.  In all the negative press, the Truth about Kaloko has been hidden by the State to hide its responsibility for the dam failure by blaming Jimmy,” Trotter said.

An estimated 370 million gallons of water released before dawn that Tuesday morning in 2006 from the dam owned by Pflueger and his family trust, and 7 people were killed by the raging wall of water that reached as high as 25 feet when it slammed into Kauai’s main Kuhio highway and bridge below.

Then Attorney General Mark Bennett conducted grand jury proceedings in November 2008 on Kauai, and after four days, 20 witnesses and 207 exhibits, which created a record of 607 pages, Pflueger was indicted on 7 counts of manslaughter and one count of reckless endangerment in the first degree.

The state said Pflueger’s reckless actions led to the deaths of Aurora Solveig Fehring, her husband Alan Gareth Dingwall, and their 2-year-old son, Rowan Grey Makana Fehring-Dingwall; 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. All of the people killed were staying on the Fehring’s 6-acre property.

Aurora Fehring Dingwall, Alan Dingwall and their son Rowan

The state claimed Pflueger covered the dam’s main safety feature, the 118-year-old earthen dam’s only spillway, despite repeated warnings from multiple people who told him that it was dangerous. The state also maintains that Pflueger knew people lived, worked and traveled below, and that caused the earthen dam to fail. Pflueger covered the spillway for profit, the state said, because he wanted to build homes around the reservoir.

The powerful waves swept away 100 foot trees, cars and homes, and caused millions of dollars in property damage to both public and private property. Property damages filed against Pflueger, the state, the county and private companies, were litigated in a separate civil case filed by lead plaintiff Bette Midler.

Trotter, like Pflueger himself, blames others for the breach and subsequent deaths including the state government. “In order to escape its culpability in the matter, The State blames Jimmy while cloaking itself in the ‘sovereign immunity’ defense in legal proceedings.  In other words, the State took on the responsibility of public safety, did nothing, and gave itself immunity for not doing its job.  If this is not enough, now the State destroys the reputation of a good man – not a perfect man – but a good man with a malicious prosecution,” Trotter writes.

Trotter offered several points in his letter, everyone of which the state counters in its legal arguments.

“The State made a deal with C. Brewer in 1977 to allow Brewer to develop unused former sugar plantation land below the dam if Brewer would continue to use and maintain the Kaloko Reservoir to irrigate agricultural lands.  When Brewer sold its part of the Reservoir to Jimmy Pflueger in 1987, it specifically kept for itself ownership of the water and the responsibility to maintain and use the irrigation system to honor its deal with the State.  Brewer, through its subsidiary Kilauea Irrigation Company, sold that water to farmers for decades.  Jimmy Pflueger did not profit from these water sales – Kilauea Irrigation Company and Brewer did.  Now the state is saying that the water and irrigation system which includes the dam and reservoir is Jimmy’s problem.  For the State, history and legal responsibilities are simply inconvenient truths,” Trotter writes.

But the state maintains that Pflueger prevented Tom Hitch, manager of the water system, from entering his private property. In addition, Hitch said when he told Pflueger that the spillway had been covered creating a potentially unsafe situation, Pflueger told Hitch to mind his own business.

The state also notes in its legal responses that Pflueger enjoyed the benefits of the reservoir, creating a beach on the reservoir’s banks where he and his family and friends enjoyed a variety of ocean sporting activities. Several witnesses interviewed by Hawaii Reporter, including Pflueger’s own niece and farmers in the area, claim Pflueger manipulated the water flow and directed water into Ka Loko from waterways above through a series of ditches that he could easily control.

Trotter uses a government report in defense of Pflueger: “In 1984 the Soil Conservation Service in a joint Federal/State study questioned the stability and safety of the foundation of the dam when it was owned by C. Brewer (trees over 50’ tall were growing at the dam base which was leaking heavily).  C. Brewer and the State did NOTHING about the dam in response to this report.”

Pflueger admitted on a tour that he gave to Hawaii Reporter after the breach that he knew the dam was leaking, and in fact, he showed where he had planted stunning water lilies in places where the leaks created ponds.

However state experts maintain the “leaks” were not the cause of the dam breach, rather it was Pflueger’s covering of the dam’s only safety feature, the spillway, that cause its collapse.

Trotter counters that “the spillway was not the primary safety mechanism to prevent water from overtopping the Kaloko dam.  The Kaloko Reservoir is fed by ditches with gates which could cut off as much as 90% of the water going into the reservoir.  Kilauea Irrigation Co., not Jimmy Pflueger, controlled or owned these ditches and gates.  Not once during the highly unusual 40 days and nights of rain before the breach were the gates closed by Kilauea Irrigation Co.  In fact, Kilauea Irrigation Co., which knew that there was no spillway, did not monitor water levels at the Kaloko Reservoir during the 40 day storm. … Experts disagree whether the absence of a spillway had anything to do with the dam’s failure.  A respected national engineering firm says the dam broke from the bottom, not from the overtopping, for reasons identified much earlier in the 1984 Soil Conservation Services Report.”

State expert witness Horst Brandes countered this in testimony: “an earthen dam is made out of soil typically.  And if you have water flowing over the top of the dam, it can start washing the soil away and it can start doing a lot of damage to the dam, and in fact in the end it may cause it to fail catastrophically, which is exactly what happened at Ka Loko.” The state also points out that the dam never failed in more than a century, through many large rain storms and hurricanes, until its spillway was covered.

Trotter continues with his public defense of Pflueger: “The State never inspected the dam at any time during the 10 year period before its failure contrary to its statutory responsibilities to inspect the dam at least once a year. … Jimmy Pflueger wrote a letter to the Department of Land & Natural Resources (DLNR) of the State of Hawai’I in October 1990 granting the DLNR the unfettered right to inspect the dam at any time.  The State later lied and said Jimmy never gave it permission as an excuse for not inspecting the dam.  (It should be noted that the state law gives DLNR the right to inspect any dam with or without permission.)… The State classified the Kaloko dam as “Low Hazard” – meaning it posed no danger to life or property if it breached.”

The state Department of Land and Natural Resources admitted that the dam was never inspected and that the dam’s old classification of low hazard should have been revised, but the state attorney general points to letters from the Department of Land and Natural Resources to Pflueger and his family’s Mary Lucas Trust asking for access so the dam could be inspected. The state DLNR maintains access was never granted to the gated private property.

Trotter said the state was on Pflueger’s property before the breach: “Beginning in April 2001, Jimmy invited State Public Utilities officials to Kaloko to inspect the irrigation system (ditches, reservoir, dam, etc.) operated by Kilauea Irrigation Co. and warned them that the entire system was not being maintained.  A PUC official went up to Kaloko with Jimmy in July 2001.  The warning was ignored.”

The state said a PUC official did go to the property, but was not anywhere near the covered spillway. The reservoir is contains more than 40 acres of water and the property owned by Pflueger and his family through the Mary Lucas Trust extends hundreds of acres.

Trotter also blames a Kauai realtor for the deaths: “In 1998, Mike Dyer said he notified both the State and Jimmy about the spillway being filled.  State officials deny that Mr. Dyer ever sent such a notice.  Mr. Dyer thereafter sold residential lots below the dam to buyers without disclosing to buyers that the dam posed any danger.”

Dyer said in 1998, he wrote two letters to Pflueger and one to the state telling of the unsafe situation created by the filled in spillway. His testimony and photos and letters are key evidence in the case against Pflueger.

Trotter, like Pflueger and his attorneys, also blame the people who died for their own deaths, saying they lived in unpermitted structures. “The unfortunate people who perished in the flood were living next to the stream in unpermitted, make-shift dwellings in the flood zone contrary to County of Kaua’i laws.”

The state counters that it is fortunate that hundreds of people living, traveling and working below Ka Loko did not die in the flood, because waves that reached the homes in the area were 25 feet high. It was only the time of day that the breach occurred, before sunup, that likely spared lives, argued former attorney general Mark Bennett in court.

Trotter ends his letter with these questions in all capital letters: “TO THE PEOPLE OF HAWAI’I: WHEN WILL THE TRUTH ABOUT KALOKO BE ADMITTED TO BY THE STATE? WHEN WILL THIS UNFAIR AND MISGUIDED PERSECUTION OF JIMMY END?”

The answer is likely up to Pflueger. Since his indictment in November 2008, Pflueger has filed – and subsequently lost – several appeals to prevent the criminal case from going forward.

  • In February 2009, Pflueger moved to disqualify the department of the attorney general as prosecutor. The circuit court denied this motion in August 2009, after granting defendant’s request for an evidentiary hearing on the matter (and allowing defendant to subpoena several State witnesses).
  • Pflueger immediately filed two motions to dismiss the indictment, one on grounds of prosecutorial misconduct and the other for failure to present exculpatory evidence. The circuit court denied both motions in June 2009.
  • Pflueger then moved for a bill of particulars. The circuit court granted in part and denied in part defendant’s motion. The State filed its bill of particulars in October 2009.
  • Pflueger subsequently moved to dismiss the indictment on the following grounds: Double jeopardy; insufficiency of the evidence or, in the alternative, vagueness and additionally moved for a change of venue.
  • In February 2010, the circuit court separately heard and denied defendant’s motions.
  • Pflueger immediately appealed the circuit court’s order denying dismissal of the indictment on double jeopardy grounds. He also moved for, and was granted, leave to file an interlocutory appeal of the court’s order denying dismissal of the indictment for insufficiency of the evidence or vagueness.
  • He recently lost his appeal to the Hawaii Intermediate Court of Appeals, according to an opinion issued June 23, 2011.
  • Pflueger’s lawyers can appeal the most recent case to the Hawaii Supreme Court for up to 90 days from the June 23 ruling, but the court does not have to accept the appeal. When all appeals are exhausted, the case will be tried in Kauai’s 5th Circuit Court.

    For more information, see the state’s response to Jimmy Pflueger: PFLUEGER – SOH Opp to Sufficiency of Evidence w-out sealed exhs. (12-22-10)

    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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