LIHUE — It was not a sentence that anyone was prepared for on Wednesday in 5th Circuit Court.
A January 2013 plea agreement reached with James Pflueger did not include recommended jail time from the State Attorney General. But the 88-year-old retired Honolulu auto dealer will serve seven months in jail along with felony probation for his part in causing the Ka Loko dam failure on March 14, 2006 that killed seven people.
In his statement to the court, Pflueger paused and appeared choked up as he extended sympathies to the families of the seven victims.
“As a father, I have lost two sons, one as a young child and the other as an adult,” he said. “I know there are no words to ever express the grief for their loss.”
He added that no amount of money from civil lawsuits could ever compensate this loss. He said not a day goes by that he is not reminded of the tragedy.
Pflueger then addressed the dam breach, saying he “sincerely believes” his warnings of imminent dam failure to the state and to the state Public Utilities Commission were ignored.
He said he thought the C. Brewer people were his friends when they sold him two-thirds of the reservoir. Pflueger said the failure to disclose extensive problems with irrigation system was significant to the problem. Eight years later, he has had to sell nearly all of his assets to pay for legal and settlement costs.
“I hope that somehow, some way this can bring some closure to this tragedy,” Pflueger said.
Pflueger’s defense was not an effort to try to escape responsibility, but to explain his role in this tragedy, said Chief Judge Randal Valenciano. There is also no question of the contributions he has made to the community.
“I will tell you that jail time is appropriate in this case,” said Valenciano, who has presided over the case from the beginning.
Pflueger was sentenced for one count of first-degree reckless endangerment. He and his company that took responsibility for seven counts of manslaughter in a second case, Pacific 808 Properties LP, were to pay a $350,000 fine and receive felony probation with no jail, per the plea agreement.
“In this situation, the court is not going to allow the business to shield Mr. Pflueger from being responsible,” Valenciano said.
The court reduced the seven-count manslaughter fine from $50,000 to $7,000. Valenciano gave a five-year term of probation with the seven-month jail sentence.
“There were no winners today; there were only losers,” said Bruce Fehring, who lost three family members when the dam burst and sent 350 million gallons of water roaring down a gulch into Wailapa stream. It swept away five dwellings, killing 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.
Deputy Attorney General Vince Shigeto Kanemoto said the assertions from the defense that reports said the breach was natural, caused by a failing earthen dam, came prior to learning Pflueger had filled the spillway around the dam on his 33-acre property in Kilauea. Kanemoto asked the court to sentence according to the plea agreement with five years probation, one year of jail and community service.
“What happened here was egregious, and all for monetary gain, and seven people died,” Kanemoto said.
Pflueger’s attorney William McCorriston, said after the hearing the defense would be making a motion for reconsideration of sentence. It was, in part, for Pflueger’s failing health, he said.
An appeal was not considered as it would likely take longer than the jail sentence itself to be resolved, he added. Yet, McCorriston reiterated that Pflueger was less than 50 percent at fault, basing the proof on the water rights agreement that governed the Kaloko system.
The agreement with C. Brewer that detailed the duties to maintain and repair were solely the responsibility of Kilauea Irrigation Company, he said. This company did not have the assets to carry out its responsibilities, and this information was kept from Pflueger at the time he bought the property, McCorriston said.
He also blamed the breach on the earthen dam itself due to old age.
“I’ve never seen a situation where one person was made responsible for the mistakes and errors made by a lot of different people,” he added. “I guess somewhere, somebody needed a pound of flesh, and unfortunately in this case it was Jimmy Pflueger.”
Attorney Mark Zenger said he shared the concern that Pflueger was made to look as the “lone bad guy” in this case.
“There are enough people involved in this that I don’t have enough fingers and enough toes to point at all of those people,” he added.
Zenger’s role in the hearing was to describe Pflueger’s contributions to the community, and as a father of three surviving children and a grandfather of eight. The man’s deep generosity included anonymous gifts of tires, cars and tuition, he said.
Pflueger has made a difference for many people and the community of this island, he said. He served as a U.S. Marine in World War II.
“His bond is his word, and that is legendary for him,” Zenger said.
Zenger asked the court to consider house arrest, if the court found jail time was appropriate. It would allow doctors and family to care for Pflueger, who has a history of heart problems, cancer and arthritis.
Valenciano denied a request to delay enforcement of sentencing for three weeks to allow Pflueger to tend to health issues.
A grand jury indicted him seven years ago, and changes in administrations, attorney generals and prosecuting attorneys have resulted in a long delay. Valenciano said he was more upset with Pflueger’s deflecting of responsibility to a corporate entity, and for countless communications from him blaming the victims for illegally living in a flood zone next to a stream.
Fehring called Pflueger a man of means with blatant disregard for the environment and the community that stand in his way for what he wanted to do. He said his character is that of a self-centered, self-righteous egotist and a mean spirited, vengeful bully.
He said Pflueger controlled the land around the reservoir and selfishly, dangerously filled the emergency spillway for recreational and business opportunities.
“This is not pono and I will not be intimidated,” Fehring said.
Pflueger has sold his Kauai properties to pay for civil settlements in this case and another $5.5 million in court-ordered remediation, along with $2.3 million in penalties and fines related to a separate mudslide in 2001.
Valenciano called Pflueger a successful businessman, but said he was also a “business bully” who thought he could be above the law with profit-motivated action with limited regard for community or societal impact.
“The court believes that your attitude was to act first and then worry about the consequences or compliance later,” he said.
Valenciano said he agreed others shared responsibilities for the disaster. There were number of contributing factors and multiple entities and individuals involved in this tragic event, he said.
“You were one of the central figures in this tragedy and you bear some if not a great deal of fault,” Valenciano said.