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Jimmy Pflueger Indicted for Manslaughter for Kaloko Deaths
After today’s booking, Pflueger’s bail was posted by A&E Bounty Hunter Duane ‘Dog’ Chapman
By Malia Zimmerman, 11/24/2008 11:46:23 AM
LIHUE, KAUAI: A ferocious rainstorm hit Kauai Friday spurring a downpour predicted to be as heavy as the storm that hit the island in March 2006.
It was that storm that filled James Pflueger’s Ka Loko Reservoir until its dam breached in the early morning hours of March 14, releasing an estimated 400 million gallons of water on the North Shore residents below, killing eight people and causing tremendous property damage.
On Friday, as the skies darkened over Kauai, a grand jury met in secret inside the Kauai courthouse for its fourth straight day to hear evidence on the 2006 dam breach. At issue was whether Pflueger, a wealthy retired automobile mogul, willfully covered or altered his dam’s main safety feature, called a “spillway”, causing the water in the 30-acre Ka Loko Reservoir to overtop and breach the dam when the rising rainwater couldn’t be safely released.
Before noon, the grand jury issued an indictment against Pflueger for seven counts of Manslaughter and one count of Reckless Endangering in the First Degree. Pflueger turned himself in to authorities today for booking, and according to his civil attorney Bill McCorriston, will plead “not guilty” when arraigned at a later date on Kauai. His bail was posted on Kauai this morning by A&E Bounty Hunter Duane ‘Dog’ Chapman, a close family friend.
The indictments handed down against Pflueger mark a dramatic end to the two-and-a-half year criminal investigation led by Hawaii Attorney General Mark Bennett.
“We believe that the evidence justified the presentation to a grand jury of a case charging James Pfleuger with Manslaughter for recklessly causing the deaths of Alan Gareth Dingwall, Daniel Jay Arroyo, Rowan Grey Makana Fehring-Dingwall, Aurora Solveig Fehring, Christina Michelle McNees, Timothy Wendell Noonan, Jr., and Carl Wayne Rotstein,” Bennett says.
Aurora, Alan and Rowan
Chistina Sunny McNees
The indictments also caused many local observers to wonder how one of Hawaii’s most wealthy and powerful businessmen, who for most of his 84 years lived a lifestyle of the rich and famous, is charged with crimes that could land him in prison for the rest of his life.
Living High in Hawaii
Once one of Hawaii’s most well known “Waikiki Beach Boys”, Pflueger associated with the likes of Duke Kahanamoku and other famous surfers and paddlers from Waikiki’s Outrigger Canoe Club. As the grandson of Mary Nauepu Bannister Lucas, a Native Hawaiian taken in as an infant by Kaahumanu, the “favorite wife” of Kamehameha the Great, Pflueger lived a privileged life in pre-statehood Hawaii.
In the 1960s, Pflueger worked in car sales and bought his first dealership. “I know how to work and work hard and I know how to talk to people,” Pflueger told Hawaii Reporter in a 2006 interview. He was the first to bring Honda to Hawaii, the deal made him one of the wealthiest men in the state.
Besides remarkable success in business, Pflueger had many other talents. Extremely rugged and athletic, even in his later years, he surfed, paddled, water-skiied and jet-skied. He flew his own helicopter and some times irritated his neighbors when he landed it where he pleased. He drove rugged vehicles up steep mountains. He helped build Hawaii’s first racetrack and won racing competitions. Eventually, Pflueger married and had five children.
And Pflueger bought land – a great deal of it – on almost every maln Hawaiian island. The story of how Kauai’s 118-year-old Ka Loko Dam, and its surrounding 1,000 acres of land came to be in the possession of Pflueger and the Mary Lucas Estate, of which James Pflueger is an heir, began 144 years ago in the Kingdom of Hawaii under the rule of Kamehameha V, when Mary Lucas was born. Mary Lucas accumulated considerable land holdings in Niu Valley on Oahu and on the North Shore of Kauai during her more than 100 years of life and left it to her family. At the time of the Ka Loko Dam disaster, he owned more than 500 acres on Kauai, including most of the land around the reservoir and the dam itself.
According to numerous stories Pflueger shared with Hawaii Reporter about his business ventures and occasional encounters with people who crossed him, he didn’t let anyone get in his way either in business or in life and he didn’t answer to anyone when it came to his actions on his private land.
A Fall from Grace
The indictments handed down on Friday are not the first time Jimmy Pflueger has run afoul of the law.
When Pflueger purchased 393 acres from his family trust for $6.4 million on the North Shore of Kauai overlooking the beach in Pilaa in April 1997, he says the property, then valued at $7 million, was “ugly, that no one in the family wanted it,” and that his daughter Tracy, a real estate agent, warned him of potential problems from property owners who would access their kuleanas or neighboring small land parcels through his property.
But he says Pilaa captured his heart and set out to make it “beautiful” with the help of a special tractor that could make the once forest-filled grounds manicured like a golf course. “You know, you see all these weeds, we buried them. Anything you see here you can knock down and bury them,” Pflueger said, motioning around his Pilaa property.
Pflueger now admits he illegally graded and grubbed several acres of his property fronting Pilaa beach in 2001. Heavy rains on the 50 to 100 acres of exposed land led to the November 26, 2001, catastrophic mudslide, which devastated the beach and bay.
The mudslide also damaged the property, home and small business of Amy and Rick Marvin. With the help of local attorney Teresa Tico, the Marvins won a large civil settlement against Pflueger in 2007.
Amy and Rick Marvin
Kauai Attorney Teresa Tico
Beginning in 2001, Teresa Tico and Amy Marvin pushed for criminal charges against Pflueger, and in 2006, after an extensive investigation by county, state and federal officials, Pflueger was charged with 13 counts. He pled guilty to 10 felonies and was sentenced to three years probation and a nationwide record for a storm water case – and he was levied a $12 million fine.
“You know what? I did do work without a permit. I screwed up. And I said ok I accepted it. I am a felon,” Pflueger says, adding, “This was a nightmare.” He said in court that there would have been no problem if the rains hadn’t come. Pflueger is still performing remedial work at Pilaa mandated by the settlement with the EPA.
Ka Loko, A Crime Scene?
Before his illegal grading and grubbing at Pilaa in 2001, Pflueger admits he did the same kind of work on a nearby Kauai property around Ka Loko reservoir.
The land surrounding the reservoir is partially owned by him and the Mary Lucas Trust, for which he was one of two lead trustees with his cousin Paul Cassidy, until his niece, Christiane Lucas, took them both to court to have them removed for mismanagement. She accused her uncles, particularly Pflueger, of “self dealing,” something which infuriates Pflueger who maintains he is a “good steward of the land.”
Multiple permits are required to work around a dam, but those weren’t obtained before the work in the area, according to state special investigator Robert Godbey.
Local Realtor Mike Dyer, who once managed the dam, reservoir and surrounding property for a former owner, says he visited Pflueger’s property in 1997 and saw construction around the reservoir, which he believed compromised the dam’s safety, so he took photos and says he faxed two letters to Pflueger calling attention to the fact that Pflueger had covered the spillway. The spillway, which Dyer describe as 15 to 20 feet wide concrete slab located just below the dam, was key to releasing water overflow safely. Without a spillway, he told Pflueger that if there was too much water flowing into the reservoir from heavy rains, it could overtop the dam, causing it to breach.
Mike and Shar Dyer
At the same time Dyer expressed his concern, a separate anonymous tip sent County’s Department of Public Works inspector to investigate Ka Loko on November 7, 1997 where he documented illegal grading with heavy equipment on the hilltop adjacent to Ka Loko Reservoir. Pflueger and his workers had leveled a 50-foot hill to create home sites. The inspector 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 and ordered Pflueger to “stop work immediately with the exception of work to correct any hazards to public safety and health.”
But Pflueger did not stop work at Ka Loko. Instead, Pflueger, who told Hawaii Reporter in an exclusive interview in 2006 that he felt he was being harassed by inspectors, says he personally visited Mayor Maryanne Kusaka and gave her $9,000 cash. County records show that subsequently the stop work order was not enforced.
On Nov. 26, 1997, John Buist, Jr., a civil engineer for the county, says he was summoned by Mayor Kusaka to discuss Pflueger’s grading violation. Buist says 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.” Buist explained “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.” But instead of the mayor coming down on Pflueger, Buist was told to “stop all actions involving Mr. Pflueger.”
Pflueger told Hawaii Reporter that he doesn’t remember any correspondence with Dyer and he does not recall ever seeing a spillway at Ka Loko. But he admitted that he could have covered the spillway 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 says.
Regardless if he covered the spillway, Pflueger says he is not responsible for the death and destruction that resulted from the dam breach. He blames former landowner, C. Brewer, and the Kilauea Irrigation Company’s manager, Tom Hitch, who through a 1987 water rights agreement distributed water from the reservoir to the farmers below. He says they should have noticed if he covered the spillway because they were in charge of maintaining the water system.
“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. … But if I did it (cover the spillway), no problem. I don’t remember doing it, but if I did it, no problem.”
He also blames the State of Hawaii because the Department of Land and Natural Resources officers never paid him a visit, despite a 1987 law that says dams must be inspected every 5 years. (The DNLR director at the time of the breach, Peter Young, said Pflueger did not grant the DNLR access to his property).
Hawaii Attorney General Mark Bennett led the grand jury proceedings, despite an earlier protest last Tuesday from Pflueger’s attorney William McCorriston, who unsuccessfully aimed to have Bennett and his office prevented from heading the criminal investigation because he claimed Bennett has a conflict of interest being that the state could also prove culpable.
Bennett says he believes the evidence in the case justified the presentation to the grand jury, but that “an indictment is only an accusation and Pflueger is considered innocent unless and until he is found guilty beyond a reasonable doubt by a judge or jury.” He confirmed if convicted, Pflueger could be sentenced for up to 10 years in prison for each of the manslaughter counts.
Just after the indictment was filed, McCorriston held a press conference to announce his client’s outrage, saying that the 82-year-old Pflueger shouldn’t be subject to such legal proceedings because he infirmed with a heart condition, and moreover, because he is innocent. McCorriston says he will fight to move the criminal trial to Oahu or the Big Island and is considering waiving a jury trial because he doesn’t believe his client can get a fair trial on Kauai after “years of bad press.”
McCorriston also unsuccessfully attempted to move Pflueger’s civil trials from Kauai after they were consolidated in Kauai’s 5th Circuit, even taking his plea to the Hawaii Supreme Court.
Bennett says he will vigorously fight attempts to move the trial off the island. The vast majority of witnesses are on Kauai, and the some of the victims’ families say moving the trial would be difficult for them.
Two civil trials are scheduled in 2009: A wrongful death suit in February and a property damage suit in September 2010. So far, Fifth Circuit Court Judge Kathleen Watanabe has refused to reschedule the civil trials despite attempts from Pflueger’s legal team to get them delayed; but now that Pflueger has been indicted for Manslaughter and Reckless Endangering, the civil trials may have to wait until the criminal charges are resolved.