BY MALIA ZIMMERMAN – On the very last day that he could legally do so, retired automobile mogul James Pflueger filed an appeal to the Hawaii Supreme Court to challenge an opinion issued June 23, 2011 by the Intermediate Court of Appeals that allowed his manslaughter case to go forward.
Pflueger is charged with 7 counts of manslaughter for recklessly causing the deaths of 7 people when his dam breached in the early morning hours of March 14, 2006.
Pflueger’s attorneys, who have filed several appeals since their well-known client was indicted by a Kauai grand jury in November 2008, already unsuccessful appealed a Fifth Circuit court ruling in February 2010 that allowed the manslaughter case to go forward.
Attorney William McCorriston argued on Pflueger’s behalf that double jeopardy, insufficiency of evidence and a vague manslaughter statute should force the state to drop the charges.
The three Intermediate Court of Appeals judges including Associate Judges Daniel R. Foley, Alexa D.M. Fujise and Lawrence M. Reifurth who heard oral arguments in the case in May 2011, denied each of Pflueger’s motions.
Pflueger had 90 days to appeal the ruling to the Hawaii Supreme Court, which ended October 12, 2011. The state has until October 27 to file a response.
The Supreme Court could accept or reject the case and let the lower ruling stand. If the case is rejected, it will return to Kauai’s Fifth Circuit Court for trial. If the Supreme Court accepts the case, oral arguments would likely be in the spring of next year.
At the center of the prosecution’s case is whether Pflueger knowingly covered the dam’s spillway, the dam’s only safety feature, recklessly causing their deaths.
Former State Attorney General Mark Bennett, who argued for the state before the Intermediate Court of Appeals, knocked down Pflueger’s arguments one by one. He told the three-judge panel that double jeopardy does not apply.
McCorriston argued that Pflueger’s history of illegal grubbing and grading on his Kauai property without proper permits – and his subsequent prosecution by the state for those violations – should prevent his client from being prosecuted.
But Bennett pointed out, and the court agreed, that Pflueger’s 2002 violations were specifically for illegal grading on the south side of the reservoir. As numerous witnesses noted, the illegal grading that allegedly caused the dam breach happened in 1997 and 1998 on the opposite side of the reservoir or the north side.
The Intermediate Court also agreed with the state that there there is more than enough evidence to allow the case to go to trial. As Bennett pointed out to the court in oral arguments, Pflueger was indicted in November 2008 after four days of testimony that included 20 witnesses and 207 exhibits and created a record of 607 pages.
Finally, the court disagreed with Pflueger that the manslaughter statute is vague in how it relates to his case. There were multiple witnesses who told the grand jury that Pflueger created a potentially dangerous situation by covering the 118-year-old earthen dam’s only spillway, Bennett said. He noted in the state’s brief that Pflueger “failed to uncover the spillway right up to the day of the tragic dam breach.”
The deadly breach sent a tsunami of 370 million gallons of water down the mountain and onto the Fehring family’s 6-acre property on Kauai’s North Shore just before dawn.
The powerful waves that reached at least 20 feet high swept their daughter Aurora Solveig Fehring, son-in-law Alan Gareth Dingwall, and 2-year-old grandson, Rowan Grey Makana Fehring-Dingwall, to their death.
The roaring, raging wall of water also killed Christina Michelle McNees, who was 7 months pregnant, and Daniel Jay Arroyo, her fiancé who she was set to marry just hours later; Timothy Wendell Noonan, Jr., a friend who Aurora invited to stay with them after he lost his home; and Carl Wayne Rotstein, the Fehring’s caretaker and business partner.
Bennett, who brought the case against Pflueger, but now is in private practice, returned to represent the state pro-bono during May’s oral arguments after a mutual agreement with the current attorney general. It has not yet been determined if he will continue to work with the state on this case.
Property damage claims filed against Pflueger, his family trust, the state, the county and private companies, were litigated in a civil case filed by lead plaintiff Bette Midler, a Hawaii-born Hollywood star. That case was later combined to include the lawsuit filed on behalf of the victims’ families against the same defendants.
The cases alleged that Pflueger covered the dam’s main safety feature, its spillway, causing it to breach; that the state did not inspect the dam as required; and that the county allowed illegal grading there. The dam’s former owner and operator also paid a portion of the settlement.
The lawsuits were settled for an estimated $25 million in 2009, and there may be another $25 million settlement for the victims from an insurance company. The terms of the settlement were not disclosed.
However, Pflueger has not yet paid his share of the settlement, and in fact, is in default as of September 1. The victims’ attorneys do have a back up plan. They’ve placed liens on some of Pflueger’s properties, including more than 384 acres along the pristine Pilaa Bay on Kauai.
Lawyers for the Ka Loko victims will have to decide whether they should try to sell the properties and collect the money or wait another two years to see if Pflueger in fact pays the settlement.
Pflueger has another appeal pending before the Hawaii Intermediate Court of Appeals. Just before the Ka Loko breach, Pflueger was prosecuted in 2006 by the EPA, State Department of Health and County, for 10 felony counts for illegal grading and grubbing and pollution of the pristine Pilaa Bay on Kauai in the year 2001, in what would be the most serious and significant criminal environmental case in Hawaii’s history. He had fines and restoration requirements totaling $12.5 million. Pflueger continues to appeal matters in a civil case related to the Pilaa flood.
In another unrelated case, Pflueger, his son Charles Alan Pflueger, his accountant, Dennis Lawrence Duban and his employees, Julie Ann Kam and Randall Ken Kurata, were indicted on September 5, 2010, on charges of “conspiracy to defraud the United States for the purpose of obstructing the Internal Revenue Service in its collection of taxes.”
The U.S. attorney added charges for James Pflueger and his accountant Dennis Duban in connection with James Pflueger’s sale of a property in California. The U.S. Attorney said an estimated $14 million in proceeds “were sent to a bank account located in Switzerland” and that Pflueger failed to disclose the existence of the foreign bank account to the IRS. Duban, a CPA, is also charged with “aiding in the filing of false federal tax returns on behalf of Charles Alan Pflueger (two counts) and James Pflueger (one count).” The trial was set for November 8, 2011 in the federal tax fraud case.
Editor’s Note: Malia Zimmerman, editor of Hawaii Reporter, was subpoenaed in a Ka Loko Dam breach civil case by James Pflueger and in the criminal manslaughter case by the state attorney general.