Pila‘a landowner James Pflueger is expected to change his plea from not guilty to no contest to 14 charges of violating state water-pollution laws, when he next appears in Fifth Circuit Court.
His next scheduled appearance is Thursday, March 18, before Judge Clifford Nakea.
Instead of making an appearance for the setting of a trial date before Nakea in Lihu‘e last Thursday, Feb. 26, Pflueger’s lawyer, Ben Cassiday, filed a motion to change the plea.
But there is no plea deal, said state Deputy Attorney General Colleen Chun, meaning that if Pflueger enters a no-contest plea (which does not acknowledge guilt), he will face a $5,000-to-$50,000 fine and maximum imprisonment of three years for each charge of knowingly violating water-pollution laws.
“He will be pleading straight-up,” said Chun.
That means he could face fines of up to $1.2 million and 72 years in jail if given the maximum sentence for each charge.
Cassiday said yesterday that the state is trying to remove the availability of the “no-contest” plea, so that Pflueger will have to plead guilty.
If Pflueger pleads guilty, his admission of guilt could be used against him in civil cases, which have been brought by attorneys for the federal, state and county governments, and a group of Pila‘a residents including Amy and Rick Marvin.
Those civil cases have yet to be settled.
Plaintiffs in the lawsuits contend that un-permitted work on Pflueger’s Northshore land in 2001 caused storm runoff to cause a host of damages on the neighboring Marvins’ property, the state beach below the land, and the reef in Pila‘a Bay, after torrential rains in November 2001.
Pflueger, a retired Honolulu automobile dealership owner, pleaded no contest in March 2003 to three county petty-misdemeanor charges for violating the county’s zoning ordinance for un-permitted work on his properties in 2001 and 2002.
He was fined $3,075 and ordered to serve 450 hours of community service in a plea-bargain agreement reached between his former defense attorney, Phil Lowenthal, and attorneys with the Kaua‘i County prosecutor’s office.
Pflueger’s current attorney said his client is being targeted by both state officials and private entities.
“It’s all about money,” said Cassiday. “The state is using criminal charges to help the civil litigants.
“The criminal-justice system should be separate from civil litigation,” he added.
Cassiday blamed the Marvins for the criminal charges, saying that the impetus behind the criminal charges was to help their civil case.
The state criminal charges were filed after the mudslide in November of 2001, which, the Marvins contend in their civil suit, caused serious damage to their property.
The first count, Chun said, refers to the creation of the plateau on Dec. 6, 2001, that diverted water from “the lower road” on the property. The third count, she said, refers to the installed culvert that also diverted water from the road.
The rest of the counts refer to documented cases, from January 2002 to August 2002, where the creation of the plateau and culvert caused muddy rainwater to go directly onto Pila‘a Beach and into Pila‘a Bay.
“Every count has an eyewitness,” said Chun. “The culvert emptied directly onto the beach and into the ocean.”
Most of the cases were documented by the officials with the state Department of Health, or by neighbors, said Chun.
In nine of the 14 counts, the neighbors are the Marvins, said Cassiday.
“They are literally the driving force behind all these cases,” said the lawyer.
But Marvins’ lawyer, Teresa Tico, said Pflueger is the force behind the case, and called Cassiday’s comments “ludicrous.”
“Mr. Pflueger has yet to take personal responsibility for this environmental disaster,” she said yesterday. “He wants to plead no contest. If he were taking personal responsibility, he would be entering a guilty plea.”
Cassiday’s comments “are just another example of (Pflueger’s) failure to take personal responsibility,” Tico contended.
She added that the state has conducted its own investigation, using “objective physical and scientific evidence. If anyone was the driving force behind this, the EPA (U.S. Environmental Protection Agency) and the (state) Department of Health Clean Water branch were.”
The one thing all three lawyers agree on is that the decision is out of their hands. Nakea will make the decision whether to accept a guilty or a no-contest plea on March 18.
Staff Writer Tom Finnegan may be reached at 245-3681 (ext. 252) or mailto:tfinnegan@pulitzer.net.
