Kauai residents and some legislators call for an independent inquiry into the cause
KILAUEA, Kauai » State Attorney General Mark Bennett should let someone else lead the criminal and civil investigation into what caused the Ka Loko Dam breach that killed seven people, according to politicians, residents and the dam owner's property manager.
Meanwhile, Bennett, who testified before the state House, maintained that he and his office can conduct a fair and impartial investigation.
"Anyone who knows me knows that I will approach this case like I have approached all the cases in my career: aggressively and vigorously and letting the chips fall as they may," Bennett said. But a growing chorus of Kauai residents, including Bruce Fehring, who lost three family members and four friends, and political leaders say the state cannot be impartial, since it could be held at least partially responsible for the breach, since the dam was never monitored or inspected.
About 60 people wearing T-shirts with "Dam Mad" protested potential conflicts on the part of the attorney general yesterday near Wailapa Stream down from the Ka Loko Dam.
On April 26 the Kauai County Council is expected to act on a resolution calling for an independent investigation.
U.S. Rep. Neil Abercrombie said he knows Bennett well and thinks he is an "excellent" attorney, and that is why it is important to get another investigator in the mix.
As the investigation continues, the state, its employees, "perhaps even the governor herself" could face criminal or civil charges, and it is the attorney general's job to defend them.
State investigators are expected to return to Ka Loko today to continue their investigation.
Fehring held a news conference to call for an independent investigation into what caused the tragedy and to make sure it does not happen again.
"The story coming to light is not 4 weeks old or 4 months old or 4 years old, it is decades old," Fehring said. "Residents of Kilauea (and the surrounding areas) have been seeking answers to questions about stream diversion and altered water flows in mauka lands for years and years."
But despite complaints to state and federal agencies, nothing has been done, he said.
Abercrombie, who was on Kauai at Fehring's request, was joined by state Sen. Gary Hooser (D, Kauai-Niihau), who tried to amend a bill to include language requiring an independent investigator. Senate leaders said the matter would be discussed as lawmakers continue work on all bills in the final weeks of the session.
AT ISSUE FROM some perspectives are Bennett's ties to William McCorriston, the attorney retained by landowner James Pflueger, whose property includes the Ka Loko Dam and reservoir. Bennett and McCorriston are former law partners.
Gordon Rosa, Pflueger's property manager on Kauai, said Bennett's office could not be objective. "From day one the AG's office came in finger-pointing," Rosa said. "They were head-hunting early to save their butt."
Two House panels advanced a measure yesterday calling on the attorney general to appoint a deputy within his office to conduct an independent investigation into the Ka Loko Dam failure.
The deputy would be asked to investigate "independently and with impartiality" any role the state, Kauai County, private landowners and others might have had with respect to the dam breach.
"The community is clear: They do not feel they can get an independent investigation" under Bennett, said Rep. Brian Schatz (D, Makiki-Tantalus), vice chairman of the House Water Land and Ocean Resources Committee.
"What the Legislature is focusing on is what the people of Kauai want, which is an independent investigation."
Bennett noted that on the day of the disaster, he retained experts to fly to Kauai and assess the damage and gather evidence, even though he was not required by law to do so.
"All I can do," Bennett told lawmakers, "is give you my word and my representation that the fact that my former law firm is involved, or the fact that there may be culpable state and county officials, is not going to influence me in any way to do this job with less vigor."
Lawmakers said an investigation could be set up within Bennett's office with sufficient "firewalls" in place to ensure impartiality.
BENNETT NOTED that the deputy would still report to him, ultimately, and that such an investigation would be duplicative of what he plans to undertake. He said he would conduct an investigation whether a deputy is appointed or not.
And he bristled at the notion that as leader of the investigation, he would be compromised in any way. He said there is no legal or ethical conflict arising from his past relationship with McCorriston, and cited case law that has cleared attorneys general in other states in similar cases.
Still, three Kauai residents traveled to the Capitol to push for an independent inquiry.
Amy Marvin criticized Bennett's office for allowing Pflueger, a former car dealership magnate, to plead guilty to lesser crimes and avoid jail time in connection with a November 2001 mudslide on his property. Pflueger, who also was represented by McCorriston in that case, was instead fined $500,000 and given three years' probation.
"The attorney general and his former law partner made a sweetheart deal," Marvin said.
Marvin and her family are currently suing Pflueger over damage to their home they say was caused by the 2001 mudslide.