Pflueger asks judge for recusal


POSTED: Wednesday, February 25, 2009

LIHUE » Lawyers for Ka Loko Reservoir co-owner James Pflueger have again asked a judge to remove the Office of the Attorney General from prosecuting him on manslaughter charges, according to court papers.

Pflueger, 82, was indicted for seven counts of manslaughter in November, allegedly for filling in the spillway at Ka Loko Dam, which breached in March, 2006, killing seven.

Just prior to his grand jury indictment, however, Pflueger and his lawyers argued that Attorney General Mark Bennett and his office should be disqualified from the prosecution, saying the Attorney General cannot both prosecute Pflueger and represent the state in civil cases relating to the dam breach.

Circuit Judge Randal Valenciano denied the motion, but said that if Pflueger's attorneys could prove the attorney general could not keep the criminal and civil cases separate, he would revisit the matter.

“;If (Bennett) is on the criminal team,”; Valenciano said in November, “;and he is obtaining information from the civil trial, not through independent means, then he is subject to recusal.”;

This week, Pflueger's attorneys reiterated their argument, adding that not only has Bennett been using information from the civil case to prosecute Pflueger, he may be called as a defense witness.

According to the motion, the state's case appears to rest on the belief that in or around 1997, when Pflueger and his employees moved thousands of pounds of dirt to make a homesite on the west end of Ka Loko Reservoir, they pushed the dirt into the spillway, which sat on the east end of the reservoir.

Pflueger has admitted to clearing the land for the homesite, but has repeatedly denied covering the spillway.

The spillway, a safety feature which keeps water from going over the top of an earthen dam, was once a working feature of Ka Loko, but was not found after the dam breached in 2006.

In the motion, Pflueger attorney William McCorriston argues the state released all liability against Pflueger in regards to the unpermitted dirt removal at Ka Loko by drawing up a liability waiver that was signed just six days before the breach.

The liability waiver was part of a settlement between the state, which was represented by the Attorney General; the U.S. Environmental Protection Agency; and environmental groups. The consent decree ordered Pflueger to pay $2 million in fines and do $5.3 million in remediation work for unpermitted construction at both Ka Loko and Pflueger's property at Pilaa.

McCorriston said he might call Bennett, First Deputy Lisa Ginoza, and other deputy attorneys general to answer why they helped write the decision and why the remediation agreement was adequate before the dam breach, the motion states.

Bennett was in Washington, D.C., and could not be reached for comment. Ginoza also did not return a message seeking comment yesterday.