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.
Bennett promised then, “I will be able to tell the people of Kauai and the people of Hawaii that we have done everything possible to try to get them answers as to why this happened.”
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.
How could these delays continue ? asks the ABC news reporter, The Judge is now a part of the problem, rather than the solution, caught up in the “kiss the money” disease that infects public servants now and again. The hardworking people of Hawaii deserve better than to have their justice system hijacked by the elite “above the Law” egomaniac. – Victims and their families have the same rights as the scoundrels that prey on those with less money. Where is the State ? why is the State not seeing that those victimized see justice. ? This is a disgrace.
Last year I was hired to work on a documentary on the Jimmy P. reservoir disaster. It proved impossible to do a comprehensive job on that project because of vested interests and the fact that the key players on all the many fronts and sides and quadrants of this sad, preventable saga could not or would not talk for fear of jeopardizing the case, and their stake in it. The comedy of errors that passes for government in the Sandwich Islands, as well as the almost total lack of objectivity and savvy by the press, is Homeric. But while I was unable to do the job I was paid for – for many reasons, really – I had three months to sort out the case. And did. Not for Jimmy. For me. I smelled a rat from the start on this one.
The entire defense rests on the fact that the earthen dam overtopped, supposedly because Jimmy P. negligently filled in a “spillway” that would otherwise acted as an emergency run-off for a reservoir swollen by record rains. As a former rock climber and explorer I’ve spent half my life tromping around jungles and so forth and looking at topo maps and sorting things out. This case was actually quite easy to sort out; Island officials were too lazy to do the necessary footwork (maybe a month’s worth) and instead spent upwards of a million dollars searching for a spillway that was never there as advertised. I went back to the plantation records (several museums and a raft of old texts) to get clear on this point. There was only a ditch, never a proper cement-lined structure as some claimed. Whether or not Jimmy filled it in I have no idea. It has nothing to do with solving this mystery.
In short, if you wanted to verify that the Ka Loko dam NEVER overtopped, you’d have to repeat this protocol – and it would take you about two days worth of digging up records and old news footage, and a day at the site with GPS surveying equipment. But you can verify this with 100% precision and certainty.
The Ka Loko reservoir is actually set in a natural crater or volcanic cinder cone in the shape of an oblong tea cup. The “rim” of the crater is pretty uniform for the entire circumference. the crater is mostly a natural hollow that only needed to be filled-in for a roughly eighty yard long stretch on the downstream side of said crater, where the reservoir leakage streamed into the gulch below. This dam was accomplished I believe in 1890 by way of an uncompacted earthen embankment that was later (I think circa 1920) covered with a “hydrofill” jacket of water-hosed clay, delivered to the site by way of flumes, and which dried and set up hard as concrete.
The key thing to establish is that this embankment – which was later allowed to become totally overgrown by trees and vegetation – had a thin road on top of it, and as confirmed by dozens of photos from 1930 on, was a passageway that did not dip and have a crowned (rise) profile. That is, the top of the approximately 80 yard long earthen dam ran straight across, and was almost perfectly level. When the day blew out, it washed away a fifty or so yard hunk of the dam, leaving only both ends, and ten or so yards of road, on both ends of the former dam. The important thing to know is that because these ends are still in place, and you can walk right out on both of them, and peer at the breech, it is easy to postulate the level of where the top of the reservoir was before the dam breached. It simply ran straight across from both ends of the remaining road, and the remains of the earthen dam embankment.
Because you can now estimate to within a few yards the exact height of the form dam embankment, you can do standard surveying calculations and posit this embankment height relative to the height of the rest of the crater. That is, if we go back to the analogy of the tea cup, the crater forms a rim as we have on the tea cup. If the rising water in Ka Loko rose to a height to where it began to spill over the earthen dam embankment, as some people claim, there could be physically possible only if the top of the dam embankment was the lowest point in the “rim” of the tea cup – that is, the crater. If there were lower sections in the rim, the rising water would obviously escape through those, meaning the water could only have overtopped the dam embankment is said water RAN UPHILL.
Modern GPS surveying equipment can posit the height of a knoll or hill or point to within inches. Even a cursory survey of random spots about the rim of Ka Loko discloses that there are many points along the rim of the crater that are LOWER than the dam embankment. Catastrophic amounts of water would have rushed out of these as the water rose, and there would have been anecdotal evidence of this – but there was none – not in the many photos taken of the dam after the fact, or in the hours of news footage shot from a copter the day the dam breached.
Established the height of the dam embankment is easy by way of photographic records. The top of the dam was not just a few yards higher than the surrounding rim, it was significantly higher. See for yourself. The surveying is very simple as well – you can establish many places on the rim that are much lower than dam embankment in just a few hours.
By this prescription, any second-rate engineer can incontrovertibly prove that the only way for the Ka Loko reservoir to have ever overtopped is for all that 400 million gallons of water to have ran directly up hill. Don’t take my word for it. See for yourself. It’s astonishing to me that no one hasn’t bothered to do this already.
I have no vested interest in Jimmy, and have had no contact with the man since leaving the Islands last Aug. 20, 2011. I’m sure he always did things his own way at peril to others – but Ka Loko reservoir never overtopped – of that you may be sure. And if you have some little curiosity and ambition, you can easily prove it.
I find it very hard to believe that you are who you say you are. The director who was hired for a movie about Pflueger was called JON LONG. Please peddle your lies elsewhere
It is interesting to see how this plays out. The hard evidence is at the Ka Loko dam itself. As I said, JP is an easy target and likely is complicit on other issues but the whole busines of him destroying a spillway that was in turn the sole cause of the dam failure is total bunk. The state's responsibility in inspecting the dam (they never did) remains the main motivation to tango around and blame Jimmy P., an easy mark. Look how easily Ms. Zimmerman roasted the man, thogh this can hardly be called objective journalism.
It would take a world class journalist a good long time to sort through this whole affair. For the time being, most of Hawaii is simply looking for a scapegoat, and Jimmy P. is their man. Fact is, ascribing an eficicnt or root cause to the dam failure is easy: Ka Loko was not maintained after the sugar plantations were shut down in the the 1970s. Throw in a month of biblical rains, and you have a disaster.
The real tragedy is that people died and that the state totally failed at their given task of inspecting Ka Loko. We might never know Jimmy F's true involvement in this disaster but the state's case that the dam overtopped is total rubbish, easily vouchsafed by any surveying team on the island.
A sad thing all around.
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