James Pflueger

BY MALIA ZIMMERMAN – It has been more than five years since the Ka Loko Dam breached on March 14, 2006, killing seven Kauai residents and an unborn child and causing hundreds of millions of dollars in property damage and environmental wreckage.

Now James Pflueger, 85, the man the state attorney general says is responsible for the breach, may finally have his day in court.

In conference yesterday, attorneys for the state and the influential retired automobile dealer agreed to set an October 1, 2012 start date for what is expected to be a 6 to 8 week manslaughter trial.

Pflueger was indicted in November 2008 on 7 counts of manslaughter and 1 count of reckless endangerment in the first degree after a Kauai grand jury heard from 20 witnesses  and reviewed 207 exhibits and 607 pages of documentation. They agreed there is enough evidence to show he likely caused the dam’s collapse by illegally and intentionally covering the primary safety feature, the dam’s spillway. Pflueger entered a plea of not guilty on January 7, 2009.

Aurora Fehring Dingwall, Alan Dingwall and their son Rowan

The deadly breach sent a tsunami of 370 million gallons of water down the mountain and onto the Fehring family’s 6-acre property on Kauai’s North Shore just before dawn. The powerful waves that reached at least 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.

Defense attorneys for the 85-year-old retired automobile mogul have filed numerous appeals since their client’s indictment, successfully delaying his trial for more than 18 months, making the loss they suffered even more traumatizing for the victims’ families. However, the Hawaii Supreme Court on November 22, 2011, dismissed what is likely Pflueger’s most important appeal to date, in which he claimed double jeopardy, insufficiency of evidence to go to trial and vagueness in how the manslaughter statute applies to his case. The October trial date could be delayed again until January 2013.

The attorney general’s office agreed to delay the trial as much as another year, in part because Pflueger has other court battles to contend with.

Pflueger, his son Charles Alan Pflueger, his accountant, Dennis Lawrence Duban and his employees, Julie Ann Kam and Randall Ken Kurata, were indicted on September 5, 2010, on charges of “conspiracy to defraud the United States for the purpose of obstructing the Internal Revenue Service in its collection of taxes.” The case is set for trial in May 2012.

The U.S. attorney also charged Pflueger and his accountant Dennis Duban in connection with hiding $14 million in a Swiss bank account. The federal trial, which was originally set for November 8, 2011, has been postponed until May 2012.

Attorney Edward M. Robbins Jr. will represent Pflueger in the federal tax fraud trial while William McCorriston, David Justin Minkin and Brian Sun will continue to defend Pflueger in the criminal and civil litigation surrounding the dam breach.  McCorriston, Minkin and Sun, along with Deputy State Attorney General Mark Miyahiro, held a video conference on October 5 with Kauai 5th Circuit Court  Chief Judge Randal Valenciano to determine the schedule.

Pflueger may still face additional civil legal matters related to the deadly 370 million gallon breach, which killed Aurora Solveig Fehring, her husband Alan Gareth Dingwall, and their 2-year-old son, Rowan Grey Makana Fehring-Dingwall, along with Christina Michelle McNees, who was 7 months pregnant, and her fiance Daniel Jay Arroyo, and Timothy Wendell Noonan, Jr. and Carl Wayne Rotstein.

Property and death damage claims filed against Pflueger, his family trust, the state, the county and private companies, were litigated in a civil case that was settled for an estimated $25 million in 2009, and there may be another $25 million settlement for the victims from an insurance company. However, Pflueger has not yet paid his share of the settlement, and in fact, is in default as of September 1, 2011.

Pflueger has another appeal pending before the Hawaii Intermediate Court of Appeals. 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 flood.

 

Hawaii Reporter editor Malia Zimmerman was subpoenaed in the Kaloko Dam breach civil and criminal cases by both the defense and prosecution respectively.

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