The dam broke, releasing more than 400 million gallons of water on the residents below killing Aurora Fehring, husband Alan Dingwall and their 2-year-old son, Rowan Fehring-Dingwall; Christina “Sunny” McNees, (7 months pregnant), and fiancé Daniel Arroyo; Wayne Rotstein and Tim Noonan – and causing millions of dollars in property damage.

Grand jury proceedings, which began in July, were to resume next week Tuesday.

But in a delay tactic, William McCorriston, an attorney for the retired automobile mogul, demanded yesterday in a press conference that Attorney General Mark Bennett step aside as the lead prosecuting attorney in the ongoing criminal probe of his client.

McCorriston does not represent Pflueger in the criminal case, only in the civil litigation, but he is asking a Kauai judge to disqualify Bennett and order an independent investigator to lead the grand jury proceedings. The state is culpable in the case, McCorriston says, something he claims the grand jury will not learn if Bennett is in charge because he will attempt a cover-up to protect the state from civil litigation.

The judge will hear Pflueger’s motion on Tuesday, November 18.

"It is very troubling to us to see that this open and notorious, obvious conflict of interest is being perpetrated," McCorriston said in a KGMB 9 News television report.

Bennett and McCorriston have a long history together – one that is historically more amicable. Bennett and McCorriston were partners in a private Honolulu-based practice, McCorriston Miller Mukai MacKinnon, for 13 years before Bennett took over as state attorney general in 2002 – and they were friends – something that garnered criticism of Bennett from the victims’ families throughout this case.

Previously quiet on the criminal probe, Bennett defended his investigation yesterday: “Since the Ka Loko Dam tragedy occurred, I have led the State’s criminal investigation into this matter with one and only one goal: To determine whether criminal charges are legally and factually warranted and appropriate. That was the goal the day of the tragedy; that is still the goal.”

Bennett adds, “I have played no role in the civil case in this matter, and neither I nor the prosecutors also working on this case have any conflict of interest. I will not be dissuaded from doing my sworn duty as Hawaii's chief law enforcement officer by desperate personal attacks or any other kind of attack.”

Criminal Probe: Who Done It?

At issue in the criminal case is who covered the dam’s main safety feature, a concrete spillway, and whether that caused the breach of the more than century old earthen dam after more than 40 days of rain in the Spring of 2006.

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.”

Special Investigator Robert Godbey notes in his January 2007 report that 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.”

Multiple permits are required to work on a dam, but those weren’t obtained before the work in the area, the Godbey Report documents.

Pflueger’s contractors admit to working in the area, but so far deny they covered the spillway.

The answer to who covered the spillway, which witnesses describe as 15 to 20 feet wide concrete slab located 8 to 10 feet below the dam, may have already been answered by Pflueger.

Pflueger has been in trouble with the state and federal government before for illegally grubbing and grading his land in a neighboring Kauai community called Pilaa, which led to the destruction of private property and a pristine coral reef, soon to be designated a preserve. In 2006, he pled guilty to 10 felony counts and was fined an unprecedented combined state and federal fine of $12 million with orders to restore the land he tore up in 2001. He also settled a civil suit with the Marvin family for the damage the 1,000-ton mudslide caused to their Pilaa properties and business. He still has yet to pay the $12 million fine, and in fact, has asked the federal government for extensions on his payment plan.

In a July 2006 exclusive interview with Hawaii Reporter on his property at Ka Loko and Pilaa on Kauai, Pflueger talked about his love for grubbing and grading the land so he could make it more “beautiful.”

He says he had a special tractor made, 44 feet wide and 17 feet tall, which can literally bury trees and shrubs and create a smooth and manicured look to the grass. “You know, you see all these weeds, we buried them. Anything you see here you can knock down and bury them,” he said, motioning across his beach side property at Pilaa.

Pflueger also said he didn’t remember ever seeing a spillway at Ka Loko, but admitted he could have covered it himself.

"And that reservoir around it is beautiful because I mowed it right down there to the edge. I did, mowed everything. I mowed everything. And if I filled something up or if somebody filled it up – tell me. Tell me. I mean, tell me," Pflueger said.

(The day after talking with Hawaii Reporter, Pflueger arranged another meeting and asked that this conversation not be disclosed, however, the interview was recorded and on the record.)

Was Pflueger Told He Covered the Spillway?

Mike Dyer is 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. He told Hawaii Reporter that he’d documented unsafe activity at the dam in the late 1990s and reported it to both Pflueger, and to the state Department of Land and Natural Resources Kauai office, which is the agency in charge of inspecting dams every 5 years. He says 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.

Pflueger saw Dyer and offered to drive him up to the Ka Loko reservoir for closer inspection. Dyer became greatly troubled when he saw the dam’s concrete spillway 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 400 million to 500 million gallons of water, Dyer feared the worst could happen.

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.

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 concerned, 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.”

Pflueger was adamant when he told Hawaii Reporter that no one ever told him that he’d covered the spillway.

When asked by Hawaii Reporter, “So you are telling me that nobody told you that there was anything wrong?” He said, “Nobody told me a thing. Everybody is an expert on why it failed. Everybody is an expert. They don’t consider the fact that it rained for 44 days, the fact that they had a dry year a few years prior to that, or that maybe that Nature had this planned.”

Where Was County Enforcement?

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. A County’s Department of Public Works inspector 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.”

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. Buist’s memo says: “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.”

Buist continues: “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 notes 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 is not disclosed in this correspondence - because the county officials already knew - 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.

Kusaka’s actions came under further scrutiny when Pflueger disclosed to Hawaii Reporter that he was angry because he felt the county inspectors were harassing him. He says he complained to Kusaka in 1997. 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. The campaign spending commission has declined to investigate the case. ABC 20/20 also interviewed Pflueger about this contribution to Kusaka, which he confirmed after prompting from Senior Legal Correspondent Jim Avila.

Kusaka has been subpoenaed as part of the grand jury proceedings, but so far she’s hasn’t answered questions.

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 or Pflueger. She told ABC 20/20 that she did not recall such a contribution from Pflueger; she wouldn't answer questions about why she called off the inspectors. Her attorney Miyagi is reviewing documents and will make a statement to the media on her behalf “when the time is right,” she says. He has never made a statement to the media in nearly two full years.

Pflueger Maintains Innocence

Throughout a nearly day long interview with Pflueger, he maintained his innocence in this case. He says even if he covered the spillway, that he is not the operator of the dam. He says C. Brewer and Tom Hitch, the former manager who bought the water management rights from C. Brewer just weeks before the dam breach, should have noticed if the spillway was covered and done something about it.

Pflueger complains Hitch did not invest the capital into cleaning the ditches of leaves and debris, something he had to do himself via his workers, so the water would continue to flow into the reservoir. Hitch had asked Pflueger to borrow $15,000 to clean the ditches, and Pflueger says he turned him down.

“How did the Public Utilities Commission accept this man (Tom Hitch) as the operator without checking his credit? He cannot even buy … he is supposed to inspect and do maintenance so the weeds don’t grow. I am the guy that takes care of it because I like to look at beauty. When you get things beautiful it makes your heart feel good,” Pflueger said.

Pflueger also admitted that he knew the reservoir was seeping before he bought the property, but wasn’t concerned about the dam’s integrity.

“I bought a piece of property with some water. You know what, I never thought I would have to worry about something like this because Brewer had the system and they were operating it at the time. I didn’t even give it a second thought.,” Pflueger said.

Hitch, who moved to Asia shortly after the breach, said that he did not have access to the Pflueger’s side of the property without Pflueger’s permission and therefore, could not always get in to maintain the system. He says they had a contentious relationship and was even threatened by Pflueger.

When asked if Hitch had unlimited access, Pflueger responded: “Absolutely he has it. When you read the water agreement, he doesn’t have to ask me to go on the property.” But he added later, “What he needs my permission to do is come over here and shut the water off from Jimmy. This is his side. He is not supposed to come in here. Shit I don’t want him in here. … Well he did shut the water off. He did that after and I told him I would kick his ass if he ever did that again.”

Pflueger also blames the state for not inspecting his dam as the Department of Land and Natural Resources is required to do every 5 years. The state counters their inspectors weren't allowed access to Pflueger's property, something he denies.

Pflueger says he is sorry for the people who lost loved ones in the dam tragedy – he says he's lost two sons so he knows about the pain of death. But he says the dam collapse wasn’t his fault.

“Everything is covered with grass. Everything is covered with grass. Whatever happened, happened. I never saw the spillway. I don’t know where the damned thing is. But who is the operator of the dam? It is their responsibility. I showed you the key that I started the car with. This is my responsibility. … But if I did it (cover the spillway), no problem. I don’t remember doing it, but if I did it, no problem.” The civil trials for the death of 8 people and property damages begin in February and September 2009 on Kauai.

Reach Malia Zimmerman, editor of Hawaii Reporter, at mailto:Malia@hawaiireporter.com

Pflueger Files...