Suits distribute blame for dam

Neighbors take action against the Ka Loko owner, who sues the state, among others

Kauai landowners have filed lawsuits, casting blame on different people for the Ka Loko Dam breach on March 14 that killed seven people.

Neighbors, led by singing star Bette Midler and the Fehring family, who lost three family members in the breach, filed suit Wednesday in Kauai Circuit Court, naming the dam owners (James Pflueger, his grandmother's trust and the trust's present trustee, Carroll Taylor) for the breach that destroyed thousands of acres of property along Wailapa Stream.

Pflueger, 80, a retired car dealer, filed suit Wednesday in Oahu Circuit Court against the state, former "Big Five" sugar company C. Brewer & Co. and the current owners of an irrigation system coming from Ka Loko to 20 farmers below the reservoir.

Pflueger's suit alleges C. Brewer knowingly sold him the dam in 1987 even though it had structural issues, and that Tom Hitch, the irrigation company owner, failed to do regular maintenance on the dam. The state was named for failing to conduct proper maintenance and for ignoring Pflueger's concerns about the dam.

C. Brewer "couldn't find a patsy in Jimmy Pflueger, so they found a patsy in Tom Hitch," William McCorriston, Pflueger's attorney, said yesterday.

Now, McCorriston said, the state is trying to make his client a patsy again by "spending over ... $1 million to blame Jimmy" for the dam breach.

And that is despite evidence that Pflueger had no water rights in the reservoir and was not responsible for its upkeep, he said.

The landowners below the reservoir paint a different picture of Pflueger.

In their lawsuit, they say it was feasible for Pflueger and the trust to maintain and monitor water levels and to warn those downstream of hazardous conditions. They also allege that Pflueger altered and graded the reservoir and filled in the emergency spillway. They allege he knew of seepage from the dam and ignored it.

McCorriston said that despite a thorough investigation, they have yet to find out exactly what caused the dam breach.

But they have uncovered numerous reports -- including letters from Pflueger to the state Public Utilities Commission -- that say the dam was unsafe well before the March tragedy.

According to McCorriston, a U.S. Department of Agriculture report of seepage from underneath the dam surfaced in the 1980s, well before Pflueger bought the dam. C. Brewer never passed along that information to his client, he said.

Gordon Rosa, a property manager for Pflueger who said he often cut grass around the reservoir, said in a March interview that he knew the dam was seeping for years before the breach.

McCorriston said everyone knew the dam seeped, as it was the only way Wailapa Stream received any water besides rainfall. It was the amount and type of seepage that caused concern to state and federal engineers, and that information should have been provided to Pflueger, he said.

Pflueger sent letters to the PUC in 2001 alleging the Irrigation company's pipes were in such disrepair that "it could blow out and drain the reservoir," according to a fax transmission from the Kauai PUC office to PUC Administrative Director Paul Shigenaga.