LIHUE » Retired auto dealer James Pflueger, 82 years old and reportedly in ill health, intends to fight yesterday's criminal indictment for the deaths of seven people who were swept away when his Ka Loko Dam breached on March 14, 2006, his attorney says.

Pflueger “;is not only presumed innocent; he is innocent. ... He will defend his honor, his integrity,”; William McCorriston said yesterday.

A Kauai grand jury indicted Pflueger yesterday on seven counts of manslaughter and on a reckless-endangerment charge relating to the Ka Loko Dam breach. If convicted, Pflueger faces up to 75 years in prison—10 years for each manslaughter count—and five years on the reckless-endangerment charge.

Pflueger is expected to turn himself in and be released on bail soon. State Attorney General Mark Bennett, who handled the indictment and intends to prosecute the case, said he did not consider Pflueger a flight risk.

 

Grand Jury Indicts Pflueger For Dam Deaths

 

 

Kauai grand jury indicted former auto dealer Jimmy Pflueger on seven counts of manslaughter for the Kaloko Dam collapse in March of 2006.

 

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  McCorriston said Pflueger is devastated. “;He's disappointed. He's hurt. So is his family. You can imagine what kind of holidays they're going to have,”; McCorriston said.

Bruce Fehring of Kilauea, who lost his grandson, daughter and son-in-law in the breach, declined to comment.

The indictment comes more than 2 1/2 years after the dam on the Ka Loko Reservoir breached in heavy rain before dawn on March 14, 2006, sending as much as 400 million gallons of water downstream and leaving a swath of destruction 200 yards wide along Wailapa Stream in Kilauea.

Property owners along the stream, as well as family members of those killed in the flood, have accused Pflueger—a kamaaina whose family has owned land in the area for more than a hundred years—of stopping up the emergency spillway at the reservoir.

The spillway at the 115-year-old earthen dam acted as an emergency mechanism, like the spill basin in a sink, keeping water from rushing over the top of the dam and eroding the dam away.

After the breach, numerous state officials, who admitted they had not inspected the dam despite their responsibility under law to do so, could not find any evidence of a spillway.

“;One of the relevant factors (in the indictment) ... has to do with the covering of the spillway,”; Bennett said yesterday while leaving the grand jury room.

According to the indictment, Pflueger committed actions between Oct. 1, 1997, and the date of the dam breach that “;recklessly caused the death”; of the seven people: Alan Dingwall, Aurora Fehring and their 2-year-old son, Rowan Fehring-Dingwall; soon-to-be-wed Daniel Arroyo and Christina McNees, who was eight months pregnant; their best-man-to-be, Timothy Noonan Jr.; and caretaker Wayne Rotstein.

According to a report released last year by an independent investigator, it is likely that when the construction crews graded the hill on the far side of the reservoir from the dam in 1997 or 1998, they used the excess fill to cover the spillway.

Pflueger has vehemently denied filling up the spillway, and his lawyer said yesterday there is “;no evidence”; that Pflueger ever did any work on the dam.

The Kauai grand jury met during a period of four days and heard more than a dozen witnesses, including dam experts, pathologists, county and state workers, victims' friends and family members, as well as an Internet reporter and the Kauai representative to the state Public Utilities Commission.

McCorriston said this is a case of the state trying to shift blame onto a private citizen when it clearly was the one responsible.

“;The state of Hawaii has tried to cover up its liability from the very first day and continues to do so,”; he added.

The state's own special investigator concluded that in all probability “;this is a case of shared responsibility,”; McCorriston continued.

McCorriston and other lawyers involved in the case also questioned the timing of the indictment.

They point out that the criminal case came just a month after the state lost a motion to dismiss all claims against it in the civil case over the breach.

It will be nearly impossible to have a civil trial when Pflueger can decline to testify citing his rights against self-incrimination, said one lawyer involved in the civil case who did not want to be identified. “;Jimmy can either go broke or go to jail,”; he said.

Bennett said he has not been involved in the civil case and that as far as timing is concerned, “;we wanted to make sure the investigation was thorough and complete,”; especially the “;scientific”; information.

A motion to continue the civil wrongful-death trial, which is set for February, is to be heard Wednesday.

McCorriston said because of media coverage biased against his client, he does not believe Pflueger can get a fair trial on Kauai, and he might ask for a change of venue. A previous motion for a change of venue in the civil case was already denied.

In 2004, Pflueger received three years' probation and the largest fine in state history when he pleaded guilty to 10 counts of knowingly violating water pollution laws, stemming from un-permitted work on his property near Pilaa Bay in 2001. Heavy rain caused muddy runoff from his illegal grading work to damage a pristine coral reef.