Dam report prompts negligence claim
An attorney says more could have been done to prevent a breach
An attorney blamed state and federal government agencies for the Ka Loko Dam breach, noting they did not do anything about a federal agriculture report that showed the reservoir was of questionable structural stability in 1984.
"If any state agency has any information concerning prospective harm to property or people, why didn't they act on it?" asked William McCorriston, attorney for landowner James Pfleuger.
But state Land and Natural Resources Director Peter Young disagreed, saying, "Clearly the study was dealing with irrigation concerns over 20 years ago. ... It was not focused on dam safety."
Young also said dam safety responsibilities fell under federal jurisdiction at that time.
According to the U.S. Department of Agriculture report, Soil Conservation Service engineers found "the structural stability of the Ka Loko Reservoir is questionable because of the seepage observed at the toe of the embankment and the dense growth of hao, guava and palm trees on the downstream face of the embankment."
However, the report also said, "The control valve at the inlet is in working order, and the emergency spillway, an uncontrolled concrete section, is in good condition."
Sedimentation had decreased the reservoir's storage capacity from 408.9 million gallons to about 390 million gallons, said the report, which was prepared in cooperation with the DLNR.
McCorriston said the report shows that calls for an independent investigation are justified into the March 14 dam break releasing nearly a half-billion gallons of water and killing seven people.
"The state has focused from day one after the dam broke ... it's the property owner's fault, prior to an investigation, prior to doing any due diligence," he said.
The state Attorney General is conducting an extensive investigation with the help of outside experts to determine the cause of the breach.
Young said it was one paragraph in a 150- to 200-page report that references the condition of the dam, but insisted he was not trying to downplay the report, saying it adds to the overall picture of the dam and reservoir. He said the laws and rules indicate who is responsible for their maintenance, and he did not know what Kilauea Irrigation Co. -- a subsidiary of C. Brewer, the owner at the time -- did with the information then.
McCorriston said his client was shocked when he first learned of the report last week.
Had "C. Brewer or anybody else told Jimmy Pflueger three years before he bought the property (in 1987) that a federal agency had raised questions concerning the structural stability of the dam, he never would have purchased it," McCorriston said.
McCorriston said the matter is one of public safety, since the dam was never classified as a high-risk dam.
"Somebody dropped the ball between 1984 and the present time when there was activity to subdivide the land," he said.
Members of the Ka Loko Dam Breach Action Alliance, made up of victims of the Ka Loko break, missed the chance to question McCorriston about the report.
Had they known McCorriston would be at the meeting, said their lawyer, Theresa Tico, they would have been there and had numerous questions for Pflueger's attorney.
"The information (contained in the report) doesn't change things," said Tico, adding that the key is to find what caused the breach.
Employees at C. Brewer Co. referred all questions to Ken Kupchak, their attorney.
Kupchak said he has yet to see or receive the 1984 report. Carroll Taylor, trustee for the Mary Lucas Estate, which owns part of the reservoir, said he had not seen the report and could not comment on it.
Tom Hitch, owner of Kilauea Irrigation Co., which owns half the water rights in Ka Loko and is responsible for its upkeep, did not return a call seeking comment.
Star-Bulletin reporter Tom Finnegan contributed to this report.
Federal tax relief available to victims of recent floods
The federal government joined state and county agencies Wednesday in giving tax breaks to Oahu and Kauai residents affected by the February and March floods.
Federal taxpayers in the areas affected by the flood, or those whose business offices were affected by the flood, will have until July 3 to file their returns and pay their taxes.
The IRS also will waive the failure to deposit penalty for employment and excise deposits due on or after Feb. 20, 2006, and on or before March 7, 2006, as long as the deposits were made by March 7, 2006.
Affected taxpayers also can claim disaster-related losses not covered by insurance companies on their federal income tax return, either for this tax year or on next year's return.
To claim the relief, taxpayers must identify themselves by writing "Severe Storms -- HI" on the top of their tax forms in red ink. Taxpayers who file electronic returns may use this disaster designation if their tax preparation software contains a "disaster feature." The state Legislature also provided a 10 percent tax break to residents and businesses to cover the cost of repairs, up to $10,000.
The Kauai County Council also passed a resolution to give Kauai homeowners affected by the floods a property tax break.
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