Chistina Sunny McNees

KILAUEA, KAUAI: 22-year-old Christina “Sunny” McNees was captured by a friend on video last March talking about the meaning of life, her belief in God and her future with fiancé, Daniel Arroyo, who she was to marry that weekend. Nearly 9 months pregnant, McNees glowed with excitement as she rubbed her round belly and spoke of the couple’s baby expected within a matter of days. When asked about the meaning of life, she said philosophically: “To remember ... to remember the one-ness and just keep working toward that. And to remember the divine, always, in everybody and everything." Arroyo stood with his arm laced around the shoulder of his bride-to-be and when prompted, shared his inner most thoughts on these subjects.

But for friends and family who flew to Kauai to be with the young couple that weekend, their words about the meaning of life and afterlife are particularly haunting. The young couple did not live to their wedding day or to experience the birth of their baby. Instead, just before the sun rose on March 14, 2006, they were swept away by what witnesses called a “tsunami from the mountain” from their snug guest cottage located near the Wailapa Stream. People of Kauai awoke to the news that on that dark morning, after 44 days of heavy rain, Ka Loko Dam’s 118-year-old earthen foundation gave way, sending more than 400 million gallons of water down what was once a tiny, almost unnoticeable stream.

Witnesses said the wave of water roared by them sounding much like a 747 as it snapped 150-foot trees in the dense Moala forest “like twigs.” They could only get glimpses of what was happening when the electric polls were torn from their stands, lighting up the sky with red flashes. The water that reached as high as 70 feet in some spots, took with its great force everything in its path, including hundreds, if not thousands of trees, homes, 16 cars, boats and irreplaceable ancient Hawaiian historical sites. The beach and reef in the ocean below was severely impacted by debris and sediment. Eight people staying on the Fehring family property lost their lives. Besides McNees, Arroyo and their baby, five other people died, including another young family, Aurora Fehring-Dingwall, her husband Alan Dingwall, and their nearly 2-year-old son, Rowen; the caretaker for the property Wayne Rotstein, and family friend Tim Noonan.

Aurora, Alan and Rowan

While Daniel, Rotstein, Noonan, and little Rowen were never found in the aftermath of the devastation, the bodies of McNees, Aurora and Alan were discovered by rescuers, and after being identified by dental records, returned to their grieving families. An autopsy on McNees documents a particularly gruesome death caused by severe trauma -- several of her ribs and her pelvis were cracked, she was covered with lacerations and deep bruising, and most shocking to her family, her baby was ripped from her body along with her internal female organs and her intestines. Mukuluk, as McNees and Arroyo planned to name their baby in the Eskimo tradition, was the eighth and youngest victim of the tragedy.

Who is Responsible? New Report Sheds Light

The question of why the dam burst and who is responsible has since weighed heavily on the minds of friends and family of these victims and on the property owners along the trail of devastation.

Nine months later on Jan. 9, 2007, state special investigator Robert Carson Godbey released a more than 200-page report with 5,000 supporting documents. In it, Godbey documents the history of the dam, its ownership, accounts from witnesses and reports over the years as to its condition before it burst.

Most importantly, Godbey says in an interview with Hawaii Reporter, he makes recommendations to the Hawaii State Legislature per lawmakers’ request as to what can be done to prevent a tragedy like this from ever occurring again.

Key Witnesses Speak Out

One of the key witnesses interviewed in the Godbey report is Mike Dyer, a well-respected real estate agent on Kauai’s North Shore who in the early 1970s managed Ka Loko Reservoir for then owner C. Brewer. Until now, Dyer has remained silent in the media, only speaking to state investigators.

Mike and Shar Dyer

But in an interview this week with Dyer at his home in Princeville, he told Hawaii Reporter how he’d documented unsafe activity at the dam in the late 1990s and reported it to both the dam’s owner, automobile mogul James Pflueger, and to the state Department of Land and Natural Resources Kauai office. His warnings were never heeded or even acknowledged.

Dyer first became concerned about the low and sporadic water level in the waterways below the dam in the Spring of 1998 and hiked up the mountain to trace the source of the problem. In the process, he trespassed on Pflueger’s land. Pflueger, driving nearby, saw Dyer and graciously offered to drive him up to the Ka Loko reservoir for closer inspection. Dyer became greatly troubled when he saw the dam’s main safety feature, a concrete spillway about 15 to 20 feet wide located 8 to 10 feet below the dam, was no longer visible, and instead was completely covered by dirt. With a background in engineering, experience in the Peace Corps with earthen dams, and the knowledge he had of Ka Loko as its previous caretaker, Dyer knew right away the serious implication the covering of the spillway had on the dam’s integrity. Too much water in the dam would flow over the top eroding the dam’s structure instead of being guided safely down the spillway. Substantial erosion would mean the dam would not hold. With Ka Loko filling up to as much as 500 million gallons of water, Dyer feared the worst could happen.

Dyer did not keep his concerns to himself. With Pflueger’s permission, Dyer returned to the dam for closer inspection with his wife and took pictures of the covered spillway and heavy grading around the dam. Letters and pictures he provided to Hawaii Reporter show he shared his concerns with Pflueger on two occasions.

On May 22, 1998, Dyer wrote to Pflueger: “I have a question about the spillway out of Ka Loko into Morita Reservoir. Please call me.” When Pflueger did not respond, Dyer wrote again on June 4, 1998: “It looks to me as if the Ka Loko spillway is covered with 8 to 10 feet of new fill. The reservoir is about 1 to 2 feet above the old fill level. It would probably take at least several months for Ka loko to fill to the new level. Then I think water will flow over a broad area in the middle of your earth dam ... just an eyeball guess. I suggest you consider digging back down to the old concrete spillway, setting a small culvert on the spillway and then backfilling it to your current level. You would probably also need to cut a new overflow ditch to the valley below your dam. Your building sites are beautiful. Thanks for letting [my wife] and me hike up there.”

Pflueger never responded to either letter, according to Dyer. Increasingly troubled, Dyer took his documents to the state Department of Land and Natural Resources and made a report, which that department claims is not in its files. But Dyer is sure the state received it because after his complaint was filed, Pflueger called him up and accused him of “turning him into the state.” Dyer said Pflueger said to him in a threatening manner during that call: “You better not have.”

Did Dyer do enough to prevent this disaster? He doesn’t think so. He glanced at his wife with pain in his eyes when he talked about the tremendous sorrow and guilt he feels because he did not personally ensure the spillway was restored. Dyer notes he is old friends with the Fehrings and even sold them the family property. He assumed the state would take care of the problem -- because the water level downstream seemed to be restored, he believed the state had done something. But in reality, the personnel in the state Department of Land and Natural Resources, the agency charged under a 1987 state law with inspecting all dams in the state every 5 years to ensure their safety, did nothing. Peter Young, director of this agency since 2002, admits the dam was never inspected and no one responded to Dyer’s complaint.

Tom Hitch, the current owner of Kilauea Irrigation Co., the company that maintains the irrigation system from the reservoir, bought the company for $10 from its original owner, C. Brewer Co. just weeks before the dam burst. Before that, Hitch was employed by C. Brewer and managed the pipeline. He backs up Dyer’s story. On Nov. 24, 1997, Hitch told investigators that he noticed the grading of the north rim of Ka Loko Reservoir had begun, but “neither the valve pit or the emergency spillway had yet been affected.” The Godbey report notes: “Shortly after Mr. Hitch cleared the pit, the valve pit was filled with earth and, at or about that same time, earth was moved into the emergency spillway, too.” Because he is being sued by Pflueger, Hitch’s lawyers have advised him not to speak to the media.

County Notified About Illegal Grading at Ka Loko, but Mayor Calls Off Investigation

According to the Godbey report, multiple permits are required to modify a regulated dam. “Typically, anyone who alters a dam is required to get a County Building Permit, a Dam Construction or an Alteration Permit, a National Pollutant Discharge Elimination System Permitting Program Permit, and possibly a Commission on Water Resource Management Stream Channel Alteration Permit.”

Just a few months before Dyer reported his concerns to Pflueger and the state, the county of Kauai was notified by at least two concerned citizens of Pflueger’s unpermitted grading around the dam. As a result, an inspector from the County’s Department of Public Works was dispatched to investigate the Ka Loko property on Nov. 7, 1997. The inspector documented illegal grading with heavy equipment on the hilltop adjacent to Ka Loko Reservoir, and 11 days later, sent a “Notice of Grading Violation” by a certified letter to Pflueger saying inspectors “observed and verified the grading on the subject property to be in violation” of the County’s ordinances. Pflueger was ordered to “stop work immediately with the exception of work to correct any hazards to public safety and health.”

Former Kauai Mayor Maryanne Kusaka

But Pflueger did not stop work. Instead, John Buist, Jr., a civil engineer for the county, says on Nov. 26, 1997, he was “summoned by Mayor (Maryanne) Kusaka” to her office for a meeting to discuss the grading violation for Mr. Pflueger. Godbey quotes Buist’s memo on this meeting and referring to himself in the third person notes: “Buist informed the Mayor that the investigation was prompted by an anonymous phone call, but that the inspector saw and took a picture of the equipment being used for the work and the cut mountain top.”

The memos are published in Godbey’s report and Hawaii Reporter has obtained the original documents. In them, Buist wrote: “I was questioned (by the mayor) as to why we responded to an anonymous phone call and responded that it was our procedure to respond with an investigation. She questioned as to the other wasted manhours to follow up on anonymous tips and that no other County Agency responded to anonymous tips. Mayor Kusaka asked whether Mr. Pflueger had applied for a grading permit, and was told that a permit application had been filed, but without any grubbing plans. The Mayor and the Assistant Administrator, Wallace Rezentes, Sr., questioned why Mr. Pflueger should be required to obtain a permit for work in such a remote area. Mr. Buist explained that the ordinance applied no matter how remote the site may be, and noted that this was not the first violation for which Mr. Pflueger had been cited. ... In closing, Mr. Portugal instructed me that I was to stop all actions involving Mr. Pflueger and all further communications from or to Mr. Pflueger are to go directly to Mr. Portugal.”

Buist documented the fact that Caesar Portugal was in charge of handling Pflueger’s case for the county, and also that Yolanda Portugal-Cabral was under contract with Pflueger in November 1997 to help him submit the grubbing plans to the county. What he does not say is Yolanda Portugal-Cabral ran the family engineering business for her father Caesar Portugal and ultimately it would be up to him to approve Pflueger’s plans that his daughter submitted.

The reason the Kusaka administration called off the inspectors is not clear. Kusaka spoke with Hawaii Reporter briefly on Sunday, Jan. 21, 2007, to say that last week she hired Kauai attorney Mel Miyagi to represent her and in the meantime, she has been advised not to speak to the media about the Ka Loko case. Miyagi is reviewing documents and will make a statement to the media on her behalf “when the time is right,” she says.

More questions for Kusaka came when Pflueger disclosed in an exclusive interview on Kauai with Hawaii Reporter that he was angry because he felt the county inspectors were harassing him. He says he complained to Kusaka in1997. Pflueger says he felt compelled to make a contribution to Kusaka, “dropping $9,000 in cash on her desk.” No donation is listed in Kusaka’s campaign spending reports from Pflueger. The legal contribution limit per individual to a mayoral candidate is $4,000 per election cycle per person from the bank account the money was withdrawn from.

Kusaka would not talk about the alleged campaign contribution from Pflueger that is not in her campaign spending report and either confirm or deny she received it. She also would not discuss her meeting with Buist in 1997 or her reason for ordering the inspections of Pflueger to stop.

Kauai attorneys for the county told Hawaii Reporter they have no files from that time on the Pflueger case and no one on staff that was around during the Kusaka administration who could answer questions on the county’s behalf. Buist, who no longer works for the county and relocated to Maui, would not speak with Hawaii Reporter. No other engineers or county employees named in the Buist series of memos would comment.

No matter the true reason for Kusaka calling off the county inspectors, as the state special investigator noted, in 1997 all “actions involving Mr. Pflueger seemed to come to an abrupt stop. There is no record that any further action was taken to enforce this Notice of Grading Violation until 2002.”

By this time, Kusaka had already left the mayor’s office.

Godbey Report: Overtopping – Thanks to Covered Spillway – Likely Cause of Failure

Dr. Lelio H. Mejia, the state expert determining the cause of the dam breach, says he believes the “dam likely failed by overtopping.” He notes the dam “performed acceptably through its 100-year history prior to the failure, while being subjected to normal reservoir loads. Records by Kilauea Sugar Plantation indicate that the reservoir filled to the level of the emergency spillway numerous times.” Dr. Mejia adds, “This mode of failure is clearly plausible because the reservoir lacks a spillway and possible inflows into the reservoir would have been sufficient to exceed the likely minimum overflow required to start erosion of the embankment.”

Godbey notes the spillway is key to protecting the integrity of the dam. “The emergency spillway is an essential safety element of every earthen dam. It is dangerous to fill an emergency spillway on an earthen dam, or to allow it to become obstructed or unusable.” He adds, “It appears that is what James Pflueger did here.”

Government Fails at Every Level to Keep Public Safe

Government at every level failed to protect the public from the dam breach. In addition to the state ignoring Dyer’s complain about the covered spillway and ultimately losing his report, and mayor ordering her inspectors to stop investigating Pflueger’s illegal grading, several other government agencies also blew their chance to anticipate the unsafe conditions at Ka Loko Dam. The Godbey report says:

• “In 1999, DLNR sent a letter to James Pflueger, as trustee of the Lucas Trust (which owned part of the land under the dam), requesting assistance in accomplishing a visual dam safety inspection of Ka Loko Reservoir. The letter was resent in 2000 ... There is no record of any response to the second letter, and no inspection was conducted.” DNLR sent three additional letters in 2001 but Pflueger did not respond. The state did not force the inspection.

• “In July 2001, Mr. Pflueger took Public Utilities Commission staff on a field visit to the Reservoir and Ka Loko Ditch. PUC staff noted that Ka Loko Ditch ‘did not appear to be maintained, even casually.’ But the landowner was not forced to fix the dam.

• “On July 3, 2002, the Hawaii Department of Health’s Clean Water Branch performed a site inspection at Ka Loko Reservoir, and reported ‘a large area near the Ka Loko Reservoir was leveled out by James Pflueger in 1997.’ They observed other construction, including a concrete diversion upstream of the reservoir, apparently at Moala ditch. They concluded: ‘it appeared that unpermitted construction activities such as grading had occurred in the Ka Loko Reservoir area.’

• “In September 2002, inspectors from the U.S. Environmental Protection Agency (“EPA”) and the DOH performed a second site inspection at Ka Loko Reservoir. At that point the EPA and the County of Kauai ordered a halt to all construction activities. (These issues were part of a larger enforcement action concerned primarily with 378 acres of coastal property at Pila‘a, which ultimately resulted in a multi-party Clean Water Act settlement in federal court.) There is no indication that any of these inspectors noticed any alterations to the emergency spillway.”

Who is Responsible for the Dam Breach? Pflueger Says He’s Not

James Pflueger, who owns the land under the dam with his family trust, the Mary Lucas Estate, has repeatedly maintained -- in his lawsuit and in an interview with Hawaii Reporter on Kauai -- that he is not responsible for the dam breach.

He points to a Water Rights Agreement with Kilauea Irrigation Company that says the company is responsible for maintaining the irrigation system and the dam. C. Brewer, the company’s former owner, knew the dam was in poor condition and did not tell him before he purchased it in 1987, Pflueger says. The company also did not correct these problems as the contracted caretakers of the irrigation system and dam, he says.

Pflueger also blames Tom Hitch, Kilauea Irrigation Company’s current owner, for the disaster.

But Hitch has maintained he could not be responsible for the dam’s condition if he could not get access to the dam and irrigation system when he needed to. He also says he is not responsible for the dam bursting because the spillway was covered by Pflueger -- ultimately altering the main safety feature.

Pflueger has plenty of blame to go around. He says the state is also responsible for the dam disaster, pointing to the Department of Land and Natural Resources, which never inspected the dam to ensure it is safe. He says the state could have and should have sent inspectors on his property. He also notes the state was fully aware of the poor condition of the dam because of the Public Utilities Commission onsite inspection in 2001, but adds the state did nothing about it.

Pflueger says he is sorry for the tragedy, but it is not his fault.

He adamantly denies he ever covered a spillway or even that he knew one existed. His denials came four separate times in a three-hour interview with Hawaii Reporter on Kauai- the only such granted to the media. In one case he said: “I never saw a spillway. I don’t even know where the God-damned thing was.”

Proud of being a “good steward of the land” and a good caretaker, Pflueger says that trait is evident by looking at his property. He says he built a special machine, 24 feet wide, that mulches trees, grass and weeds in its path and makes the land resemble more of a golf course than a ranch or forest and helped him better shape a mountain on his property. He admits that he used this machine to “mow right up to the sides of the (Ka Loko) dam,” but he doesn’t recall a spillway or covering one at that time.

In his interview with Hawaii Reporter, he also talked about keeping the water level high in the reservoir so it looked more esthetically pleasing and so his family and friends could enjoy water skiing and jet-skiing, but he says he does not believe the water level was high on March 14, 2006, when state experts say they believe the dam overtopped.

Godbey Report Spreads Blame for Dam Breach

No matter what Pflueger says in his defense, in Godbey’s report in the section that talks about culpability, Pflueger doesn’t escape blame for the dam’s collapse.

Godbey writes: “The Ka Loko Dam spillway should not have been altered. The emergency spillway is an essential safety element of every earthen dam. It is dangerous to fill an emergency spillway on an earthen dam, or to allow it to become obstructed or unusable. It appears that is what James Pflueger did here. While it seems likely that Ka Loko Dam failed by overtopping, and that the lack of a spillway on Ka Loko Dam caused or contributed to such failure that is not certain at this time. That will not be clear unless and until the failure mechanism of the dam can be determined definitively by further study and analysis.”

Godbey also adds Pflueger failed to maintain the dam. “The owner of a dam has the obligation to repair and maintain the dam. Even if Mr. Pflueger knew nothing of the alterations to the emergency spillway, that does not avoid his obligation to maintain the dam and therefore to discover and correct any problems with the spillway. Again, it is not yet certain that the problems with the spillway caused the failure of Ka Loko Dam. But if the failure of the dam was caused by other problems, such as internal erosion and piping, then proper maintenance and inspection of the dam may still have prevented or minimized the risk of failure from those mechanisms as well.”

Kilauea Irrigation Company, Inc., had the obligation to repair and maintain the entire irrigation system, including the dam, but reports regular conflicts with Pflueger in getting access to the system so the maintenance could be performed.

Godbey says, “While it is arguable that Mr. Pflueger may have assumed control of the dam by his actions, KICI did continue to control Ka Loko Ditch and the irrigation system itself. Given the heavy rains prior to March 14, KICI may have had the opportunity to monitor and control, or attempt to control, the flow of water into the reservoir.“

What About the State and County?

The state is the first to be criticized by Godbey -- he says the dam inspection mandate by the state in 1987 is under funded, understaffed and state inspectors are not cross-trained. “If Ka Loko Dam had been inspected by trained dam inspectors, the lack of a spillway would surely have been noted. Any other flaws that might have contributed to its breach could possibly have been identified, too.“ He adds, “It may be true that Mr. Pflueger did not cooperate in scheduling a dam safety inspection, but that is not an excuse for the State to ignore its obligation to inspect.” In addition, he notes Ka Loko is improperly classified as a low hazard dam. “There is no indication that proper procedures were not followed in classifying Ka Loko Dam as a low-hazard dam (by the Army Corps of Engineers in 1972), but the reality of the dam failure shows that this was a mistake.”

The county is also blamed for not enforcing the 1997 Notice of Violation at Ka Loko Reservoir. “Had this notice to stop work been enforced, the spillway might never have been filled in. But the engineer involved was called into the office of the Mayor, questioned, and told to “stop all actions involving Mr. Pflueger.” This should not have happened. No further enforcement action was taken for the next five years.”

Life Stopped Short by Dam Tragedy – State Special investigator Wants to Make Sure the Tragedy Never Repeats

Christina McNees and Daniel Arroyo missed their wedding and the birth of their first child and their family and friends from around the world were flying into share in both of these life-changing experiences instead attended a memorial service.

Aurora Fehring-Dingwall was so proud to be the mother of 2-year-old Rowen that she started a mother-baby group and regularly invited families to come to the property and let the kids play on the play equipment she set up. Now those friends hold their children a little closer.

Bruce Fehring talks about the three family members he lost when the Ka Loko Dam breached above his home on March 14, 2006

Her parents, Bruce and Cyndee Fehring, hold onto memories of Aurora being so happy to have found her soulmate in her husband Alan Dingwall and of Rowen who was an animal lover, a book lover and an adventurer.

Wayne Rotstein, the caretaker of the Fehring property, had an extraordinary gift with plants. His life and work were washed away in those early morning hours along with the new agriculture business he opened with Bruce. The Fehrings hold onto his memory as well - it lives in the beauty he created in the gardens all around them.

Tim Noonan was trying to get his life together and was grateful the Fehrings had let him stay on their property as their guest until he could. He never had that chance. His family wishes he had.

These 8 lives were unnecessarily cut short. Godbey says he has several recommendations to ensure something like this never happens again. He suggests:

• Increase state funding through fees or assessments to fund the State’s dam safety program and accommodate changes in the hazard classification of dams and monitor those classifications more closely.

• “Dam safety inspections should include comprehensive safety reviews and visual inspections. Visual inspections of high-hazard dams should be conducted at least once every two years, and comprehensive safety reviews, going beyond merely visual inspection, should be conducted once every five years.”

• “The guidelines for safety inspection of dams should be reviewed with a view to develop more streamlined dam inspection procedures that are consistent with the budgetary constraints of the State’s dam safety program. “

• “Hawaii’s Dam Safety Act should be reviewed to reconsider the recurrence interval of natural events for which owners are exempt from liability for damages.”

• “All State and County inspectors should receive proper basic dam safety training, as should all dam owners.”

• “Hawaii’s Dam Safety Act should be amended to incorporate tougher enforcement provisions, including stricter penalties for non-compliance with the law.”

Godbey’s report has been reviewed by Mark Bennett, state attorney general, and turned over to the Hawaii State Legislature for review and consideration this legislative session, which began Jan. 16.

Bennett is also conducting a criminal investigation into the dam disaster.

Several lawsuits relating to the March 14 dam breach are pending.

.Reach Malia Zimmerman, editor and president of Hawaii Reporter, via email at mailto:Malia@hawaiireporter.com

Pflueger Files...