LIHUE » Former Kauai Mayor Maryanne Kusaka was one of several Kauai residents subpoenaed to testify yesterday in front of a special grand jury investigating the 2006 Ka Loko Dam breach.

The investigative grand jury, convened by the Attorney General's Office, originally started in July to gather evidence into the cause of the Ka Loko breach and any possible criminal activities that led to the death of seven people.

But a second grand jury — convened by the state Attorney General to pursue criminal charges — is scheduled for Nov. 17, the Star-Bulletin has learned.

Yesterday, Kusaka spent the better part of the day both inside and outside the grand jury room at the courthouse, but she left without giving testimony in front of the grand jury.

Her lawyers and members of the Attorney General's staff were apparently trying to work out some kind of immunity deal for her testimony.

A state civil investigative report says Kusaka allegedly told county workers to halt investigations at Ka Loko Reservoir in 1997 or 1998.

Kusaka refused comment outside the grand jury room.

Deputy Attorney General Mark Miyahara would not comment on yesterday's closed proceedings.

Also outside the grand jury room yesterday were members of dam owner James Pflueger's staff and a number of contractors who work on his north shore landholding.

Gordon Rosa and Mark Comstock, who told the Star-Bulletin in previous interviews that they were at the dam the day before it breached and the water level was well below the top of the dam, asserted their Fifth Amendment rights at the advice of their lawyer, Mark Zenger.

Zenger said outside court yesterday that the Attorney General's Office also would not agree to an immunity deal with his clients. The AG's office also would not confirm or deny that the workers could be the focus of the investigation.

“;Negotiations were fruitless,”; Zenger added.

Rosa said the grand jury asked him about 25 questions, all of which, besides his name and address, he refused to answer.

Rosa said he was asked about his work history with Pflueger, what kind or equipment Pflueger owns, whether he had seen Pflueger operate the equipment, whether he had any knowledge of contractors working at Ka Loko Reservoir and whether he'd seen anyone fill the emergency spillway. He also was asked whether he took pictures of the reservoir in February 2006.

Rosa has repeatedly said he had never seen any work done at the dam, and that all he did was mow the area.

Pflueger has been accused of filling in the emergency spillway, according to the state civil investigative report — a charge he has repeatedly denied.

Engineers hired by the state in the civil investigation into the cause of the breach found that the dam likely failed because of overtopping, when waster rushes over the top of an earthen dam and erodes away the wall. It is designed to prevent.

The study also said that there was apparently a spillway near the dam at some time, but Pflueger has said he never say any concrete in the area. Despite an exhaustive search, no concrete was ever found there, either.