Property owners fight for relief

Fifth Circuit Judge Kathleen Watanabe has set aside 2009 for cases claiming wrongful death and property damage after the Kaloko Reservoir’s disastrous breach on March 14, 2006, North Shore-based attorney Teresa Tico said yesterday.

Tico, who is part of a legal team representing some 36 clients on 24 different Kilauea properties, said trial dates have been set in case mediation fails.

“We’re always optimistic these cases will settle out of court,” she said, adding that former state Attorney General Warren Price III is “highly qualified as a mediator.”

“We’re slowly working our way through the process,” Tico said, noting no mediation conferences have occurred to date.

Speaking on behalf of her clients, she said every day is a constant reminder of their losses — including privacy, a sense of peace and landscape views.

“Where they once had gardens … they have weeds,” she said. “It’s disheartening.”

Kilauea resident John Hawthorne, a plaintiff in the property damage lawsuit, said those suffering are feeling frustrated and seeking accountability.

“Everyone is trying to turn their backs on this and walk away like they had nothing to do with it,” he said. “No one is accepting responsibility.”

The lawsuits name defendants James Pflueger, Thomas Hitch, the County of Kaua‘i, the State of Hawai‘i, C. Brewer & Co., Hawaii Land and Farming Company, Kehalani Holdings Company, Kilauea Irrigation Company and Carroll Taylor.

Plaintiffs attorneys claim illegal grading caused the dam breach, which occurred during weeks of heavy rain.

Pflueger, who owns most of the reservoir and dam, has denied the allegations. His attorney, Bill McCorriston, could not be reached for comment.

Government agencies have maintained that their obligations in terms of property damage ended after debris removal, Hawthorne said.

“We had beautified a pristine stream and enhanced our lifestyles and our children’s lifestyles with features on the properties that have all now been destroyed,” he said. “They have no concern as far as replacing any of the improvements in the property.”

Hawthorne, a sound engineer with three grown children and four grandchildren, has owned the property since 1981.

He said he had koi ponds at the bottom where his kids played, he walked his dog and enjoyed a “park lifestyle.”

There were 100-year-old “irreplaceable” eucalyptus trees planted as wind breaks measuring 10 feet in diameter and 100 feet tall, Hawthorne said.

“This tragedy, as we call it, happened because all of the leaders that we trusted with the responsibility to make sure we were safe have failed to do their jobs and it has impacted the whole community,” he said.

When the state’s fifth largest reservoir failed before dawn, a four-story wave roared down the mountain — ripping up trees, destroying properties and flooding the Wailapa Stream’s valley.

Seven individuals sleeping at home were lost; only three bodies were recovered.

The valley filled with silt, Hawthorne said, bringing seeds of invasive species.

He said he planted bamboo that is now four feet tall, but non-native albizia trees are now 20 feet tall.

Buffalo grass, cat’s claw and weeds have created a “tangled mess,” he said.

Plus, the state Board of Land and Natural Resources decided Sept. 27 to close off the Kaloko ditch diversion unless another solution can be achieved soon to alleviate liability concerns.

Government officials are working with Kilauea farmers to find a way to avoid shutting off their water supply.

Hawthorne said three streams in the area will go dry if the main source is cut off — creating further hardship to rejuvenate the devastated properties.

“It’s like a punishment for being a victim,” he said. “The story is not over. We’ll see how it’s told in the end.”

The trial for the wrongful death lawsuit will start Feb. 2, 2009, and is expected to last six months, Tico said. The trial for the property damage cases will begin Sept. 7, 2009.

• Nathan Eagle, staff writer, can be reached at 245-3681 (ext. 224) or neagle@kauaipubco.com.