The state Supreme Court declined yesterday to disqualify Attorney General Mark Bennett from prosecuting the manslaughter case against Ka Loko Dam owner James Pflueger.

The issue should be taken up on appeal if Pflueger is convicted, the court said in a 3-2 decision. Chief Justice Ronald Moon and Justices Paula Nakayama and James Duffy were in the majority. Justices Simeon Acoba and Eden Hifo dissented.

Pflueger is accused of covering up the dam's spillway, allowing water to overflow the earthen dam in March 2006, resulting in the death of seven people.

Pflueger's attorneys have argued he is innocent and that the indictment was a ploy by the Lingle administration to deflect blame for the dam breach away from the state.

“;It escapes me how it makes more sense to determine whether somebody's disqualified after a case is tried rather than before the case is tried,”; said Pflueger's attorney William McCorriston. “;I guess Justice Acoba and Justice Hifo were similarly confused by that logic, and both dissented, making it a very close decision.”;

A spokeswoman for Bennett said the attorney general is pleased that the Supreme Court rejected Pflueger's appeal and that the criminal case will go forward as scheduled.