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Ka Loko probe now a criminal investigation

The probe into the Ka Loko Reservoir dam breach that claimed the lives of at least three people earlier this month is now a criminal investigation, an official from state Attorney General Mark Bennett’s office said Friday.

“We’re into a criminal investigation at this point, and based upon that I can make no (further) comment,” said state Deputy Attorney General Christopher Young.

“It’s an ominous turn of events,” said local real-estate attorney Peter Miller. “It would have to be based on a discovery that indicates more than negligence.

“It sounds like the attorney general thinks there’s grounds to believe a crime may have been committed,” said another local attorney whose firm members handle real-estate law cases.

“As a general rule, simple negligence is a civil matter, and criminal liability requires something more serious,” said the attorney, who is known to The Garden Island but requested his name be withheld because he was not familiar with the facts of the case. “I presume they’ve identified one or more criminal statutes that may have been violated.”

The issue then turns to who, if anyone, is at fault. The Ka Loko Reservoir is owned by two parties, James Pflueger, an Oahu-based auto dealer, and the Mary N. Lucas Trust, the estate of Pflueger’s grandmother, Mary Lucas.

It is still unclear which party owns the part of the reservoir that contains the dam, or if each party owns a portion of the dam.

“All the maps I have reflect the trust owning the western portion (of the reservoir), and Pflueger entities owning the eastern portion,” said Carroll Taylor, the Honolulu-based, court-appointed interim trustee for the Lucas Trust. “Whether that (line) intersects the dam, you can’t tell from the maps.”

The dam is on the northwest shore of the reservoir, near Wailapa Stream.

Taylor said he has no position on ownership of the dam, though he did estimate that the trust owns between 30 and 40 percent of the reservoir. Attorneys for Pflueger, who has run afoul of environmental law in the past, were unavailable for comment.

Once ownership is determined, officials must determine who is responsible for maintenance and upkeep.

Though involved since the Hawaii Dam Safety Act of 1987, officials with the state Department of Labor and Natural Resources (DLNR) have mandated that dam owners be responsible for maintenance and upkeep, with the DLNR employees serving more as watchdogs with the authority to inspect dams and order repairs, as well as to require written approval for construction and alterations.

Monitoring Hawai’i’s 134 dams (115 of which are privately owned) has proven to be difficult for state officials.

From 1993 to 1998, DLNR workers contracted out dam inspections to leaders of consulting firms, but a loss in funding led to in-house inspections beginning in 1999. Further budget cuts all but halted dam inspections in 2002. No inspections of any kind had been conducted since 2004, until after the March 14 flooding at Kilauea that claimed three lives. Four Kauaians are missing and presumed dead.

Despite the lack of state regulation and participation, officials with government agencies have taken the position that private land is private responsibility.

DLNR Chairperson Peter Young points to Title 13 of the Hawaii Administrative Rules, which says owners must provide timely and adequate maintenance, operation and inspection of their dams and reservoirs, and maintain records of construction and modification.

United States Army Corps of Engineers Public Affairs Officer Dino Buchanon agreed. “Anything that has to do with the private landowners is a private landowners’ responsibility,” he said.

The investigation, however, seems like more than a mission to assign blame.

Since the March 14 disaster, U.S. Army Corps of Engineers professionals have inspected all 54 of Kaua’i’s dams and reservoirs, with assistance from DLNR workers in some cases, and are doing the same on Maui, the Big Island and O’ahu.

“Right now, they are just compiling data,” Buchanon said. “There is no specific deadline.”

The subpoenas sent out by lawyers in the attorney general’s office, entitled, “In Re Investigation: Island of Kauai Reservoirs and Dams,” are equally vague.

“It sounds like a pretty broad-based investigation to me,” Taylor said.

Ray Lovell of the state Department of Defense’s Civil Defense Branch echoed the sentiments of Buchanon and Taylor. “I think it’s a pretty wide-ranging investigation,” he said. “The whole idea is to eliminate the possibility of this ever happening again.”

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