Pflueger alters plea, is found guilty

LIHUE » In a nearly empty courtroom, retired auto dealer James Pflue­ger was found guilty of reckless endangering in the Ka Loko dam tragedy after pleading no contest Thursday and ending years of denying that he had any responsibility in the 2006 disaster that left seven people dead.

But as part of a plea bargain, the state will drop seven counts of manslaughter, one for each victim, and agree that the 87-year-old landowner should be placed on probation rather than receive the maximum five-year prison term.

State prosecutors will be able to ask Circuit Judge Randal Valenciano to order Pflue­ger to serve up to a year in jail as a condition of his probation.

Each count of manslaughter carried a maximum sentence of 20 years in prison.

As part of deal, Pflue­ger’s company, Pacific 808 Properties LP, was found guilty after it pleaded no contest to seven counts of manslaughter.

The company agreed to pay a fine of $50,000 for each count for a total of $350,000.

Valenciano made clear he is not bound by the probation recommendation and set the sentencing for Jan. 23.

Pflueger and his lawyers, William McCorriston and David Minkin, left the Kauai court building without comment.

Bruce Fehring, who lost his daughter, son-in-law and grandson in the tragedy, expressed mixed feelings but was highly critical of the deal.

"I’m happy that Mr. Pflue­ger has finally accepted responsibility for his acts in the Ka Loko dam breach," Fehring said.

But he said was displeased about the recommendation of probation and scoffed at the fine, which he characterized as $50,000 for each life, an amount he called a "pittance" for the company.

"It is an absolute travesty," Fehring said.

Pflueger was indicted in 2008 by a Kauai grand jury on the seven counts of manslaughter for the dam breach that sent hundreds of millions of gallons of water from the Ka Loko reservoir to Kauai’s North Shore on March 14, 2006.

Alan Gareth Dingwall, Daniel Jay Arroyo, Rowan Grey Makana Fehring-Dingwall, Aurora Solveig Fehring, Christina Michelle McNees, Timothy Wendell Noonan Jr. and Carl Wayne Rotstein were killed.

Pflueger was accused of filling the dam safety spillway in disregard of the risk that the dam might break.

He pleaded not guilty and maintained that filling the spillway did not cause the breach.

Deputy Attorney General Vince Kane­moto had no immediate comment as he left the Kauai courthouse.

State Attorney General David Louie later issued a statement.

"I am satisfied that by entering into this plea agreement Pflue­ger has accepted responsibility for his part in this tragedy," he said. "It is my hope that the events of today can provide a degree of closure for the families and community affected by the Ka Loko dam breach."

Kanemoto said that under the agreement, the fine would go to the Department of Land and Natural Resources to fund dam inspections.

Valenciano, however, told Kane­moto that the fine would go to the state general fund because he does not have the authority to specify that it go to a state department.

He told Kanemoto he could submit legal authority that would allow the judge to designate which department would get the money.

Mark Bennett, former Gov. Linda Lingle’s attorney general, handled the grand jury proceedings that led to Pflue­ger’s indictment, and prosecuted the case that was inherited by the current attorney general.

Pflueger strongly contested any wrongdoing for years, at one point delaying the criminal proceedings while his lawyers appealed to the state appeals court Valenciano’s refusal to dismiss the case.

When the appeals court turned down the appeal, his lawyers asked the Hawaii Supreme Court to review the decision. In 2011 the high court refused, clearing the way for the criminal proceedings to resume.

But the case was repeatedly postponed.

It was disclosed at the hearing Thursday that Pflue­ger, defense attorney McCorriston and Kane­moto signed the plea agreement in a letter dated Nov. 5, 2012.

But the case ran into more delays as Pflue­ger apparently had second thoughts about the deal.

On April 18 the court scheduled a hearing for Pflue­ger to accept the agreement and plead no contest.

But Pflueger balked.

Valenciano scheduled a new trial date of Sept. 16 and scheduled the hearing Thursday for Pflue­ger’s pending request to dismiss the manslaughter charges.

His attorneys maintained that misconduct by prosecutors warranted the dismissal.

But instead of the lawyers arguing the issue, it was made clear at the start of the proceedings that Pflue­ger had changed his mind and accepted the plea agreement.

The details of the deal unfolded during the one-hour hearing in a spacious courtroom where the three spectators in the gallery were far outnumbered by attorneys involved in the case.

Teresa Tico, one of the lawyers for Fehring and other family members of the victims, attended the April hearing but was not in court Thursday.

She said she was surprised that Pflue­ger accepted the deal because she thought he would fight the charges "forever."

She said the plea deal had been "vetted" with her clients.

"Any conviction shows justice has prevailed to a greater or lesser degree," she said.

Tico said she can’t say whether the agreement was a "sweetheart" deal for Pflue­ger.

She said no one can guess the outcome of any trial, and that even if Pflue­ger were found guilty, there might be years of appeals.

"I’m gratified there will be some closure for my clients," Tico said.

As part of an out-of-court settlement of a lawsuit filed by the families of the victims, Pflue­ger must pay $4 million by Sept. 1, according to Tico.

Pflueger’s other legal woes included a 2010 federal tax indictment, but in March, U.S. District Judge Leslie Koba­ya­shi acquitted Pflue­ger of the federal tax charges.

Pflueger rejected the state’s plea deal in the Ka Loko case the following month, but Kane­moto said the deal remained on the table and it was up to Pflue­ger as to whether to accept it.