Kauai mudslide’s
effect debatedAt issue is damage to a reef
from a road under construction
LIHUE >> Attorneys for the state and retired auto dealer Jimmy Pflueger clashed yesterday at the beginning of a two-week hearing on damage caused in 2001 when a road Pflueger was carving into the face of a cliff collapsed and buried a coral reef in mud.
In opening statements, attorneys for both sides differed on the effect of the mudslide.
Deputy Attorney General William Wynhoff said that before the mudslide, coral covered 13 to 14 percent of the reef, but now, it accounts for only 3 percent of the reef's surface.
But Pflueger's lawyer, Wes Ching, told the Department of Land and Natural Resources hearing officer, Michael Gibson: "The coral cover at Pilaa is essentially the same as it was prior to 2001."
Ching said heavy north swell over the past two winters has cleaned most of the mud off the reef and the coral is growing again.
There is no dispute that the collapse of the cliff was caused by Pflueger building a road from a subdivision he was building down to Pilaa Beach. Heavy rains saturated the dirt that had been moved, and it all came down on Nov. 26, 2001.
Since then, Pflueger has spent more than $1 million to prevent further damage.
Pflueger also has pleaded no contest in Kauai District Court to a misdemeanor charge of grading without a permit and was sentenced to community service.
He later pleaded no contest in Kauai Circuit Court to 14 felony violations of the state's Clean Water Act. Sentencing is set for Sept. 9 by Circuit Judge Clifford Nakea.
He has been sued by a long list of government agencies and environmental group in federal court. Those cases have been consolidated in U.S. District Court in Honolulu, where settlement talks have been going on for more than a year.
Two plaintiffs who have refused to settle are Rick and Amy Marvin, who live on Pilaa Beach and whose yard was covered with mud. They plan to go to trial this fall.
The hearing that began yesterday is to determine the value of the damage to the state-owned coral reef at Pilaa caused by the mudslide. At the conclusion of the testimony from marine biologists for both sides, the hearing officer will make a recommendation to the state Land Board.
The Department of Land and Natural Resources is expected to put a $5 million price tag on the damage. The figure was reached using a formula adopted by the state of Florida to place a dollar value on damage to reefs in the Florida Keys by ships that run aground.
Pflueger's lawyers argue the formula is meaningless at Pilaa.
Unlike the Florida Keys, where recreational scuba diving is a major tourism industry, Pilaa is so remote it is rarely dived by anyone, they have told the state.
Pflueger's attorneys also contend that the method used to evaluate damage to the reef was flawed. The state used an adjoining reef to compare with the one at Pilaa that was covered with mud.
Biologist consultants to Pflueger contended conditions at the two reefs are too different for a valid comparison.
Pflueger did not attend the hearing.
Before the hearing, Theresa Tico, attorney for the Marvins, who is also active in the environmental community, said the hearing is historic because it marks the first time the state has attempted to force an individual to pay for damage to a coral reef.
