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Victims' families sue Kaloko dam owners

Posted on: Friday, June 30, 2006

By Jan TenBruggencate and Peter Boylan

Advertiser Staff Writers

LIHU'E, Kaua'i -Retired car dealer Jimmy Pflueger or his associates covered up the Kaloko Reservoir dam's

spillway, leading to a catastrophic breach in which seven people were killed, according to attorneys who filed a

lawsuit on Kaua'i yesterday.

The suit, filed by the families ofall but one ofthe victims in the March disaster, names Pflueger and several ofhis companies, plus the Mary N. Lucas Trust, ofwhich Pflueger is a beneficiary. It seeks unspecified damages.

"This dam was built back in 1890 ... and had survived all sorts of weather and other problems until what we have

asserted was illegal grading, which resulted ... in the breach ofthe dam," said plaintiffs attorney L. Richard Fried.

The suit charges that the spillway was altered so private recreational vehicles could be used in the reservoir. It calls a spillway "a safety feature designed to release excess water in order to maintain the structural stabi lity ofa

reservoir or dam."

Pflueger attorney Bill McCorriston denied the allegation, saying, "information gathered thus far suggests there is no relation between the breach ofthe dam and the spillway in question."

McCorriston also questioned the timing ofa lawsuit, saying it has been filed before the completion ofvarious

investigations into the cause ofthe Kaloko failure. The state attorney general has not selected the state's

independent investigator, he said. And in the convoluted legal environment around the breach, McCorriston said the state must bear some ofthe responsibility.

"It is not unexpected that lawsuits follow incidents like the Kaloko flood, but it's unfortunate that it has been filed before the investigations are completed," he said. "We are also conducting our own investigation. During the course ofour investigation, we have already learned a number ofthings, including the fact that the state was aware ofsafety risks at Kaloko dam as early as 1982 and did not share that information with the public or with Mr. Pflueger, who purchased the property in 1987."

Fried co-counsel Thomas R. Grande said, "We certainly hope the state of Hawai'i will go forward with the independent investigation and determine the potential culpability or contribution ofvarious entities or individuals."

Before dawn on March 14, during weeks ofextremely heavy rain, the former sugar cane reservoir failed. No witnesses to the breach have been found.

The 400 million-gallon reservoir -the state's fifth-largest -dumped an immense flood down Wailapa Stream's valley. It ripped out trees and scoured the streamsides. When it reached inhabited areas, the water and rolling tree trunks tore buildings from their foundations.

The flood undermined the wall of a dam below it, the Morita dam, severely damaged the foundations of Kuhio Highway, and entirely washed away three buildings on land owned by Bruce and Cynthia Fehring. Seven people had been asleep in the buildings, one ofthem pregnant. All were lost, and only three bodies were recovered.

Family members named as plaintiffs in the suit are natural and adoptive relatives ofvictims: Daniel Arroyo, 33, and Christina McNees, 22, who had been scheduled to be married the next weekend, and their unborn child, Mukuluk McNees; Alan Dingwall Fehring, 30, Aurora Fehring, 24, and their 2-year-old son Rowan Fehring-Dingwall; and Wayne Rotstein, 49. Relatives ofvictim Timothy Noonan, 37, a carpenter, were not among the plaintiffs.

Lead plaintiffs attorney Fried said Pflueger had been warned ofthe danger offilling the spillway.

The lawsuit and associated documents maintain that Pflueger not only made changes to the reservoir spillway, but that he refused to permit state inspectors to conduct surveys on his property.

McCorriston said that is plain wrong. He said state officials had the legal right to enter the property at any time and were never denied access by Pflueger, although he conceded Pflueger did not specifically give them permission.

While the Lucas Trust is named as a defendant, Fried said the estate is not the focus ofthe suit -Pflueger is.

"We're hoping that the Lucas Trust will work with us to uncover precisely what happened here," Fried said at a news conference yesterday.

Harry Henderson, attorney for the Lucas Trust, said he had not seen the complaint, but is confident the trust will not be found responsible. He said the trust has ordered a survey, now under way, to determine precisely which part ofthe reservoir it owns, and whether it owns any part ofthe failed dam.

"The sympathies ofthe trustee and beneficiaries ofthe trust go out to the families ofthe victims," Henderson said.

The big reservoir, which now holds only about a tenth of its original capacity behind its damaged dam, was the dominant irrigation feature in the days ofthe Kilauea Sugar Co., feeding sugar fields directly, and serving as a source ofwater to three smaller reservoirs at lower elevations.

Pflueger bought the majority ofthe reservoir, including all or most ofthe dam, from C. Brewer & Co. in 1987. C. Brewer has sold off most of its assets and is in dissolution. A minority portion is owned by the Lucas Trust.

The legal action against Pflueger and the trust is just the first major court action since the flood, but property damage claims by owners ofland along the floodway also are expected.

Fried and his legal team, which includes Kaua'i attorney Teresa Tieo, represent 32 clients on 18 different properties who plan to file property damage suits.

Reach Jan TenBruggencate at jant@honolullladvertiser.com and Peter Boylan at pbo)l/an@,honoluluadvertiser.com.