Grand jury probes dam breach

Ka loko: State convenes grand jury

STORY SUMMARY »

LIHUE » The state attorney general convened a special investigative grand jury this week to uncover evidence into what caused the deadly Ka Loko Dam breach in 2006, the Star-Bulletin has learned.

At least a dozen people were called to testify at the grand jury, including the property manager and numerous employees of retired auto dealer James Pflueger, who owns Ka Loko Dam.

Also called to testify was former Kauai Mayor Maryanne Kusaka, who said yesterday that her appearance was rescheduled but no date has been set.

Pflueger, who has been convicted of environmental violations on his other Kauai properties, has been accused of filling in an emergency spillway at the dam. He denies the allegation.

Attorney General Mark Bennett did not return calls seeking comment about the grand jury.

The Ka Loko dam near Kilauea collapsed on March 14, 2006, unleashing millions of gallons of water that swept away two homes and killed seven people.

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LIHUE » A special investigative grand jury was convened this week to look into whether any criminal charges should be filed as a result of the Ka Loko Dam breach, which killed seven people in March 2006.

The special grand jury, convened Monday by the attorney general's office, has subpoenaed more than a dozen people including a construction crew and employees of Ka Loko dam owner James Pflueger, the Star-Bulletin has learned.

Also subpoenaed was former Kauai Mayor Maryanne Kusaka, who allegedly told a county engineer to stop all actions involving Pflueger in 1997, when the county official found that unlawful grading was occurring at the reservoir.

Kusaka said yesterday that her testimony was postponed, and another date has not been set up.

Mark Zenger, who is representing Pflueger's property manager, Gordon Rosa, and three other Pflueger employees, said he has requested immunity from all prosecution for his clients before they testify at the grand jury.

The attorney general's office has not replied to that request, Zenger added.

Pflueger has been accused of filling in an emergency spillway at the dam, an allegation he denies.

Rosa has said he had never seen any work done at the dam.

Attorney General Mark Bennett did not return repeated calls for comment.

When asked for comment about the grand jury, Pflueger's attorney David Minkin said, "You know as much as I do."

Earlier in the day during a court hearing involving civil wrongful-death and property-damage cases against his client and others, Minkin told the judge, "As of today (the criminal investigation) is still ongoing."

"It's not over," he added.

Pflueger has repeatedly denied any wrongdoing.

An investigative grand jury, not frequently used by prosecutors to gather evidence, rarely issues indictments. It met both Monday and Tuesday in Lihue and is expected to reconvene next month.

The grand jury has already heard testimony from Roger Taniguchi, the contractor who allegedly did the work without a permit on the opposite end of the Ka Loko Reservoir from the dam.

As part of a 2006 settlement into numerous environmental violations at Pflueger's properties on Kauai's North Shore, Pflueger, 82, paid a fine for the grading violation at Ka Loko.

But, according to a report released last year by an independent investigator into the breach, it is likely that when the construction crew graded the hill on the far side of the reservoir from the dam, they used the excess fill to cover the spillway.

A spillway is an emergency feature used, like a spill basin on a sink, to keep water from flowing over the top of the dam.

The report, filed by Special Deputy Attorney General Robert Godbey, said it was likely the breach was caused by water overflowing the top of the dam, but Pflueger's attorneys have disputed this claim and hired their own experts who say the dam breached because it was old.

Ka Loko dam time line » 1895-1915: Mary Lucas, James Pflueger's grandmother, acquires most of the land near Ka Loko Reservoir, more than 2,000 acres near Kilauea. » 1987: Pflueger buys his half of the Ka Loko Reservoir from C. Brewer & Co. » 1997 and 1998: Un-permitted grading work is done at the far side of Ka Loko Reservoir. » November 1997: County Deputy Engineer John Buist Jr. is told by Mayor Maryanne Kusaka to stop investigating un-permitted grading at Ka Loko site. » May 1998: Michael Dyer, a real estate agent invited by Pflueger to look at possible home sites at the reservoir, sends a facsimile to Pflueger saying the dam's spillway is covered with new fill and should be removed. » 2001: Pflueger complains to the Public Utilities Commission that the pipes from the reservoir for the Kilauea Irrigation Co. are in disrepair. » March 10, 2006: Pflueger agrees to pay more than $7.8 million in fines, including $5 million in mediation work to be done at Pilaa, another Pflueger property, and the far side of Ka Loko Reservoir because of a mudslide in 2001 that damaged Pilaa beach and reef. » March 14, 2006: Dam breach at Ka Loko Reservoir, owned by Pflueger, washes away two homes and seven people. Three bodies are found. » August 2006: Families of victims file lawsuits against the state, county, Pflueger and others; Pflueger sues the state, former dam owner C. Brewer & Co. and the Kilauea Irrigation Co., which maintains the dam; landowners affected by Ka Loko also file lawsuits. » January 2007: Special Deputy Attorney General Robert Godbey's report is released, spreading possible blame among Pflueger, the state, the county and Kilauea Irrigation Co., which failed to maintain the dam. » July 2008: Investigative grand jury convenes to look into criminal charges in the breach of the Ka Loko Dam. » February 2009: Trial is expected to begin in the wrongful-death lawsuit brought by family members of those who died in the Ka Loko breach. » November 2009: Trial is expected to begin in the property damage lawsuit brought by entertainer Bette Midler and others who lost property during the 2006 dam breach.