Make dam settlement public


POSTED: Sunday, November 01, 2009

Monetary settlements have ended lawsuits stemming from the deadly 2006 Kauai dam breach but the amounts are being kept confidential. Secret settlements are commonplace in lawsuits pitting private citizens against each other, but the public should not be kept in the dark about tax dollars being used to settle cases against the state and Kauai County.

The families of seven people who died in the Ka Loko Dam breach and owners of property damaged by the breach have agreed to settlement amounts to be paid by former car dealer James Pflueger, who owns the dam, and his grandmother's trust, which owns nearby land, along with the state and county.

Kenneth Robbins, a private attorney who represented the state, said the state's part of the settlement will likely become public when it goes to the Legislature in January for approval. Likewise, Kauai Mayor Bernard “;will reserve comment”; until the settlement is reviewed by the county's attorney, a spokesman told The Garden Island newspaper.

The desire to spare victims' families undue emotional distress is understandable. But how much responsibility the state and county might share in that horrific event can be traced via how much they are paying — dollarwise and percentage-wise — in this settlement. Taxpayers have that right to know.

The state has reacted responsibly so far to the reservoir's tragic failure. The 2007 Legislature enacted a law that paid for increased inspection and regulation of dams and reservoirs in the islands. The state Department of Land and Resources reported that the Ka Loko Dam appeared to be stable.

The legislation followed a 600-page independent report by Robert Godney, an attorney and engineer assigned to review the Ka Loko disaster. He found that the breach had been due to flaws by individuals and government agencies.

The state had been required to inspect Ka Loko at least every five years but neglected to do so, Godney concluded. His report said it was likely that a spillway intended to act as a basin in a sink, diverting water before it overflows, had been covered with dirt from grading on the other side of the reservoir. A neighbor had suggested that Pflueger consider restoring the spillway.

Much if not all of the evidence that would have been presented in a civil trial probably was included in Godney's report. It may resurface in a criminal trial scheduled in April, where Pflueger faces seven charges of manslaughter — essentially that the deaths were caused by his allegedly reckless stewardship of the dam — and first-degree reckless endangerment.

Attorney General Mark Bennett, a onetime federal prosecutor, is personally handling the criminal case. Pflueger is represented by former Bennett law partner William McCorriston, who has said he will refute “;the view that it's only the fault of one person.”; That trial should clarify where the blame belongs.