Investigation of Kauai dam failure should be independent

THE ISSUE Attorney General Mark Bennett has opened an investigation into the failure of a Kauai dam during the heavy rains of March.

FAMILIES devastated by the fatal breach of a Kauai dam during last month's torrential rains are calling for an independent investigation of the circumstances leading up to the tragedy. State Attorney General Mark Bennett is confident that he can fairly conduct the probe that he has begun, but the mere appearance of such a conflict warrants an examination by an attorney with no ties to the state.

Bennett bristled at the suggestion that his investigation will be anything but aggressive and fair, but no one is challenging his integrity. In this highly emotional case, he should assign the work to a private attorney.

Central to any investigation of the Ko Loko Dam breach, which took seven lives, is the failure by the state Department of Land and Natural Resources to inspect the dam, even though such inspections are required every five years. Bruce Fehring, who lost three family members in the tragedy, points out that families had registered complaints with state and federal agencies for years about stream diversion and altered water flows.

The dam breach, Fehring said at a news conference, was "the failure of a dam conceived and built by man and which was legally mandated to be monitored, maintained and inspected by man."

Also at issue is Bennett's past association with William McCorriston, who has been retained by James Pflueger, a retired car dealership magnate whose land included the dam and reservoir. Bennett was a law partner of McCorriston's before Governor Lingle appointed him to his current post.

Bennett cites cases in other states in which attorneys general have been cleared to conduct investigations involving their past law firms. In this case, though, an emotion-filled history strongly suggests that Bennett would be prudent to step aside.

Pflueger, represented by McCorriston, pleaded guilty less than a year ago to lesser crimes in connection with a 2001 mudslide on the property. Amy Marvin, who brought a lawsuit against Pflueger for damage to her property from the mudslide, called the plea agreement a "sweetheart deal" with the state, even though Pflueger's fine of $500,000 was the largest in state history for an environmental case. A deputy attorney general said the state did not ask that Pflueger serve jail time because of his age, then 79.

Two state House committees have advanced a proposal calling on Bennett to appoint a deputy within his office to conduct an investigation "independently and with impartiality." Of course, as Bennett himself points out, that would not be a truly independent investigation, because the deputy still would report to Bennett.