LIHUE — The defendant involved in the 2006 Ka Loko dam failure pleaded no contest to first-degree reckless endangering Thursday in 5th Circuit Court. James Pflueger, 87, of Honolulu, is charged with tampering with a spillway easement around the Ka
LIHUE — The defendant involved in the 2006 Ka Loko dam failure pleaded no contest to first-degree reckless endangering Thursday in 5th Circuit Court.
James Pflueger, 87, of Honolulu, is charged with tampering with a spillway easement around the Ka Loko dam on his 33-acre property. The earthen dam failed after heavy rains in March 2006, and a wall of water killed seven people and destroyed a residential area in Kilauea.
The retired car dealer accepted a plea bargain that sets aside the original indictment. He pleaded to the one felony count, and the state will ask the court to sentence him to a five-year term of felony probation with conditions that include up to one year in jail.
Deputy Attorney Generals Vince Kanemoto and Simeona Marian presented a second case that has Pflueger’s company, Pacific 808 Properties LLC, pleading no contest to seven manslaughter charges.
Pflueger’s attorney, William McCorriston acted as the authorized representative of Pacific 808, formerly known as Pflueger Properties, and entered no contest pleas to manslaughter in the second case as the appointed representative. He was present with attorneys David Minkin and Mark Zenger.
The dam breach killed Alan Gareth Dingwall, Daniel Jay Arroyo, Rowan Grey Makana Fehring-Dingwall, Aurora Solveig Fehring, Christina Michelle McNees and her unborn baby, Timothy Wendell Noonan Jr., and Carl Wayne Rotstein.
“We have reviewed this complaint and we do understand the seven counts involved, for the seven individuals who perished in the unfortunate accident on that date, and we do fully understand each complaint stands as to each one of those deaths,” McCorriston said in court.
The plea deal asks the court to assess a $50,000 fine for each of the seven victims totaling $350,000, shifting some responsibility from Pflueger to his corporate entity. The prosecutors asked for the fine to be paid specifically to the state Department of Land and Natural Resources for purposes of dam safety inspections.
Pflueger has already paid a “substantial” amount of a confidential civil settlement from 2009, according to McCorriston last April.
Bruce Fehring, Aurora’s father, was part of the civil settlement. He was not present at court Thursday. He said during a telephone interview that he is not a vengeful person, but would like the resolution of the criminal case to send a message that justice is blind. A corporate entity cannot go to jail and this plea is a little insulting, he said.
Fehring said that if people believe, as Pflueger does, that the county and state share the blame for the disaster, then they should write to Chief Judge Randal Valenciano prior to sentencing to help him understand. If they feel as he does, every time he looks at a child the same age as Aurora would be, then they should write to demand that wealth and power should not get special consideration when it comes to human lives, he added.
“I hope that this will be a fair resolution and not a settlement that the legal teams concocted in the plea bargain,” Fehring said.
Valenciano said that court fines are directed to the state general fund because the law does not allow for specific redirection. The court also disagreed where the agreement would allow substitution of fines with assets and securities.
The court does not involve itself with the negotiating of sentences and is not agreeing to specific fine amounts, Valenciano said. The court may choose to adopt the terms of the agreement or fashion its own upon sentencing.
“I’m just going to order a fine,” Valenciano said. “The agreements that you make on the side is not something the court is necessarily endorsing.”
The agreement does not allow a motion for an appeal or a deferred acceptance of a no contest plea. Sentencing is scheduled for Jan. 23, 2014.
Once the two new cases are resolved then the prosecutor will ask the court to dismiss the original 2008 indictment. If the defense withdraws the plea prior to sentencing, then the state would go to trial with the original charges. As a precaution to ensure a resolution with the new cases, the original case was continued to March 17, 2014. This case still has motions to dismiss the indictment for prosecutorial misconduct.
Pflueger and his attorneys declined to comment.
