BY MALIA ZIMMERMAN – James Pflueger was indicted in November 2008 on 7 counts of manslaughter after a dam on his property breached on March 14, 2006, killing 7 people and an unborn child, but he has never gone to trial.
Named by Hawaii Business Magazine in February 2012 as the state’s 18th richest man, Pflueger has used his vast wealth to hire a crack legal defense team that has obtained several trial delays for nearly four years.
Two weeks ago, Pflueger sought and obtained another delay. His criminal trial was set to start October 1, but Kauai Chief Judge Randal Valenciano agreed to an extension for Pflueger. Pflueger’s legal team and the state attorney general are set to return to Fifth Circuit Court in March 2013 to discuss a new trial date. The prosecution was in the midst of re-interviewing witnesses in preparation for the October 1 trial.
While delays sought and granted have become the norm in this case, there may be more to this particular delay: Hawaii Reporter has learned the state attorney general and Pflueger’s attorneys are in plea deal negotiations.
Neither the attorney general nor Pflueger’s legal team will comment, but key sources in the case say they are privy to the deal.
Several Kauai residents impacted by Ka Loko’s breach hope Pflueger will face at least a year of prison time, have to pay the victims the compensation he promised but never paid in the civil case, and will have to restore the dam so neighboring farmers who relied heavily on the water before the breach will once again be able to access the precious resource.
They also want Pflueger to apologize for causing the death and destruction, something the victims say he has never done.
But they believe the attorney general will let Pflueger off without serious consequences in part because of Pflueger’s wealth, connections and history.
Ka Loko Breach Devastates Island Families, Property
The deadly breach sent a tsunami of 370 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 swept Bruce and Cyndee Fehring’s 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 Wayne Carl Rotstein, the Fehring’s caretaker and business partner.
The breach also caused millions of dollars in damage to both private and public property, destroyed forests and polluted the river and ocean below.
After a secret grand jury reviewed 207 exhibits, listened to 20 witnesses over four days from November 18 to 21, 2008, resulting in a record of 600 pages, they agreed unanimously to indict Pflueger on November 21, 2008 on 7 counts of manslaughter and one count of Reckless Endangerment in the First Degree.
Pflueger blames the state, county, reservoir manager and former dam owner for the breach, but he has never been willing to test that defense in his actual criminal trial.
However, the state says Pflueger knowingly covered the spillway in the late 1990s when he illegally graded and grubbed the area and flattened a large nearby hill, to prepare the area for housing construction.
Legal Delays Upset Community
Several people interviewed by Hawaii Reporter, including the victims of the breach who lost loved ones or property to the March 14 disaster, are upset by the repeated delays Pflueger has obtained.
Bruce Fehring, a Kilauea resident who lost his daughter, son in law, and two year old grandson in the breach just days before his grandson’s second birthday, said the ability for Pflueger to use his wealth to stall justice is unfair and upsetting to the victims and the entire Kauai community.
“Our country’s hard-won legacy system of swift and accessible justice has often been invoked in cases where defendants have been held for long periods before standing trial for the denial of bail or lack of bail money. However, swift justice works for both the accused and the victims of crimes. The old saying, ‘Justice delayed is justice denied,’ has deep meaning for defendants, victims, and our social fabric.
“The Ka Loko Dam Breach occurred in March 2006. Six and a half years later, there has been no trial of the man charged with 7 counts of manslaughter for allegedly filling in the safety emergency spillway of the dam to achieve a higher level of captured water. The delays have been primarily requested by, and granted to, the defendant’s highly compensated legal team, who has used every angle possible to delay justice in this case.
Bruce Fehring maintained “the ability of this wealthy defendant and his wealthy lawyers to stall justice is blatantly unfair and incredibly upsetting to the victims and our entire Kauai community.” He said “the average citizen would have faced a jury years ago, as should have Mr. Pflueger.”
“By tolerating these delays, the justice system is sending a message that wealthy, powerful and arrogant individuals can buy their freedom, and that justice is thus denied,” Bruce Fehring said.
Bob Warren, who founded the community group “Dam Mad “ with his wife, said they also are frustrated by delays and lack of resolution.
Warren said he suspects because Pflueger is in his late 80s, his legal team will postpone the trial as long as possible in hopes Pflueger will die before he ever is sentenced to prison.
Glenn Silber, a former ABC News Producer who produced the 20/20 story “Swept Away” on the Kaloko Dam disaster, and has followed the case since, said: “Given the gravity of the criminal charges against Jimmy Pflueger stemming from the Kaloko Dam disaster which killed 7 people, it’s hard to understand how and why his trial continues to be postponed year after year.”
“As a defendant — potentially facing years in jail if convicted — one can only conclude that this wealthy, prominent businessman is trying to delay his day in court – forever,” Silber said.
“As someone who has followed this case closely from the mainland since the Ka Loko Dam failed six years ago, I’m beginning to wonder if the Hawaii Legal system will ever bring Mr. Pflueger to trial on the manslaughter charges for which he was indicted.
“It appears that justice in Kauai runs on “Hawaii time’. But the families who lost their loves ones are still waiting for justice to be rendered.”
Pflueger Has History of Illegal Grading
Amy Marvin and her husband Rick took Pflueger to court after a separate illegal grading incident by Pflueger in 2001 led to their family’s private property being covered in an estimated 1,000 tons of mud and debris.
After severe rain storms, that mud flooded the pristine Pilaa Bay fronting their home, destroying the bay that was to be declared an ocean preserve.
Pflueger settled civil claims with the Marvin family 6 years later.
Before that, he pled guilty to 10 of 13 felony criminal counts related to illegal grubbing and grading and pollution and was ordered to pay the largest storm water settlement for violations at a single site, by a single landowner, in the United States.
As a part of the record setting criminal settlement, Pflueger received no prison time, but was ordered to pay fines and restoration requirements totaling $12.5 million.
The EPA announced the plea agreement on March 9, 2006, just 5 days before Pflueger’s Ka Loko Dam breached, allegedly because of illegal grading and grubbing violations he committed in 1998.
He was on probation when the dam breached, and many people in the community called on the attorney general to revoke Pflueger’s probation, but that never happened.
“The entire community is extremely upset by the lack of accountability for James Pflueger,” Amy Marvin said.
“There are definitely two systems of justice…one for the wealthy and the other for the common citizens. It is a crime that Pflueger is getting away with the delays and now maybe a plea bargain.
“We have always assumed that he gets preferential treatment within our state justice system and now there is no doubt.
“The state took his 10 felonies for grading and grubbing at Pila’a to plea bargain and he ended up with 10 days of ‘irrigation runoff’ beginning 3 months after the mudslide that could have killed our family. Where is the justice in that?
“I am disgusted with the state and very sad for the Ka Loko victims’ families. It adds insult to injury. What a travesty!” Amy Marvin said.
Linda Lingle, who was Hawaii governor during the breach, turned the criminal investigation over to her appointed attorney general, Mark Bennett, and at his request, the Hawaii Legislature allocated $3.5 million toward the investigation.
Attorney Robert Godbey was hired to conduct an independent civil review. Working with a small team of investigators and a paltry budget, Godbey produced in 6 months an impressive 222-page report, replete with some 5,000 supporting documents in January 2007.
Some of the Report’s findings and conclusions included:
— “In late 1997 or early 1998, earth was moved into the emergency spillway.”
— “The evidence … suggests that the Kaloko Dam failed due to overtopping probably as a result of the lack of a spillway in the reservoir.”
Bennett continued to handle Pflueger’s appeals even after being replaced as attorney general in 2010 by Gov. Neil Abercrombie with Attorney General David Louie.
Louie has not asked Bennett to try the criminal case in lower court despite Bennett undoubtedly knowing the facts of the case best and winning every one of Pflueger’s appeals on the state’s behalf. The case has been turned over at least twice to other attorneys in the office who were not involved with the case initially – something that has worried the victims.
No Consequences, No Lessons Learned, Victims Say
There are other people accused of contributing to the breach who also have not had any consequences.
The state: Peter Young headed the Department of Land and Natural Resources, the state agency charged with inspecting the dam every 5 years, by his inspectors never once inspected Ka Loko Dam. Young, who maintained Pflueger refused to grant his inspectors access to the site, eventually left the agency without repercussion.
The county: An anonymous complaint to the Kauai County that Pflueger was grading without permits in 1997 also was largely ignored by then Mayor Maryanne Kusaka.
A county engineering inspector checked the site from afar and told Pflueger to “stop work immediately.” But Pflueger didn’t stop and instead, the inspector was called into see 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.”
Kusaka, no longer in political office, continues to sell real estate and was never charged. Her administrators, for the most part, still live on Kauai. Her inspector quit his job and moved to Maui. He was subpoenaed to testify in the civil case.
The legislature: Politicians raced to pass dam safety legislation, but farmers say it is cost prohibitive and putting them out of business.
The state Department of Land and Natural Resources agreed with Pflueger to shut down the farmers’ access to the water from Ka Loko, which they had negotiated with the purchase of their Kilauea land parcel. Farmers faced tremendous survival obstacles with droughts, no water access and more costly regulations they say are ineffective.
The defendant: Pflueger has been able to delay his state criminal case indefinitely. However, his legal troubles are far from over.
On September 5, 2010, James Pflueger and Alan Pflueger were indicted on charges of “conspiracy to defraud the United States for the purpose of obstructing the Internal Revenue Service in its collection of taxes.” Also charged were two Pflueger employees, Julie Ann Kam and Randall Ken Kurata, and Los Angeles-based accountant Dennis Duban.
James Pflueger was charged with federal tax fraud, conspiracy, filing false tax returns and allegedly transferring $14 million to a Swiss bank account without reporting to the IRS. He could pay $250,000 for each count and spend up to 8 years in prison.
His son, Charles Alan Pflueger, who now operates the Pflueger Auto business, pled guilty to tax fraud in May 2012,
The IRS claimed Alan Pflueger owes up to $1 million in taxes. When he is sentenced in January, Alan Pflueger could receive up to three years in prison, and be ordered to pay restitution and a $250,000 fine.
But James Pflueger refuses to take responsibility, blames his accountant and continues to delay the federal trial as well. The trial for all of the defendants in the federal tax fraud case was originally set for November 8, 2011, then delayed until May 2012, then James Pflueger’s tax fraud trial was delayed again until January.
Victims Struggle to Heal
Many lives were destroyed or devastated by the breach and the community is slowly recovering from one of the island’s worst tragedies. But continuous court delays add to the stress of the victims who want the trial to be over.
Before the dam breach, Aurora Fehring formed The Aurora Foundation, to help the victims of the 2005 Pacific Rim tsunami that killed thousands across Asia and left children flooding the orphanages. Her legacy lives on.
After Aurora’s untimely death, the Fehring family and their friends have continued the Aurora Project in her name, time and supplies, blankets, medical help, and various equipment, to build a rice mill, water delivery system and to sew blankets for the children in the Thailand and Cambodian orphanages.
They have touched the lives of hundreds of children.
Editor’s note: Hawaii Reporter editor Malia Zimmerman was subpoenaed to testify in this case.