LIHUE » A state judge sent retired car dealer James Pflueger to jail for seven months Wednesday for his role in the deaths of seven people swept away in 2006 by floodwaters that had breached Ka Loko Dam.
Circuit Judge Randal G.B. Valenciano sentenced Pflueger, 88, to five years of probation for felony reckless endangering and included the seven-month jail term as a condition of the probation.
"Just because you were a successful businessman doesn’t mean you can be above the law," Valenciano told Pflueger. "You have limited regard for the community or societal impacts, and the court believes that your actions were profit-motivated."
He rejected Pflueger’s lawyers’ request to set a future self-surrender date and ordered state sheriff deputies to immediately take Pflueger into custody.
One of the lawyers, William McCorriston, said after the sentencing, "We are concerned that incarceration will have adverse effects on (Pflueger’s) health."
Mark Zenger, another of Pflueger’s lawyers, had told Valenciano that Pflueger suffers from a multitude of ailments that include congestive heart failure, rapid and irregular heartbeat, fatigue, shortness of breath, vision problems and severe arthritis. Zenger said Pflueger has also had surgery recently for a hernia, to treat a deep ulcer in his foot and to remove a cancerous legion from his leg.
In a written statement, state Attorney General David Louie said of the sentence, "Justice has been done." It was Louie’s department that prosecuted the case against Pflueger.
Bruce Fehring, whose daughter, son-in-law and grandson died in the floodwaters, had asked Valenciano to impose the maximum prison term of five years and maximum fine of $10,000. He told Valenciano that Pflueger has failed to accept responsibility for his actions, attempted to shift the blame and shown no remorse.
Fehring appeared solemn after the sentencing.
"There were no winners (Wednesday), there are only losers. That’s the sad thing. We’ll live with this, the wisdom of the court. And we do wish Mr. Pflueger good health and good luck," Fehring said.
Kilauea resident Janice Smolenski said at this point in Pflueger’s life, seven months may be all he has left. But she said Pflueger has already lived much longer than any of his victims.
Smolenski said she attended Wednesday’s sentencing because she was unhappy at the prospect of Pflueger getting no jail time at all.
"He’s been a miserable guy, always did what he wanted and suffered the consequences later because he has money," Smolenski said.
She said she is glad Valenciano imposed some jail time but that it wasn’t enough.
Fehring and Smolenski made their comments outside the courtroom.
A state grand jury indicted Pflueger in 2008 on seven counts of manslaughter.
Deputy Attorney General Vince Kanemoto said in court Wednesday that Pflueger filled in the dam’s spillway and ignored warnings to restore it. As a result, he said, the dam burst, sending 350 million gallons of water downstream. Aurora Solveig Fehring, Alan Gareth Dingwall, Rowan Grey Makana Fehring-Dingwall, Daniel Jay Arroyo, Christina Michelle McNees, Timothy Wendell Noonan Jr. and Carl Wayne Rotstein were swept to their deaths March 14, 2006.
Pflueger spoke publicly for the first time about the Ka Loko Dam tragedy Wednesday and started by saying he extends his deepest sympathy to the families of the seven victims.
"As a father who has lost two sons, one as a young child and the other as an adult, I know there are no words that can ever express the tremendous grief for their loss," Pflueger said. "I know that no amount of money in a civil lawsuit can ever compensate your loss. My heart goes out to all of you."
He also said that he is reminded of the tragedy every day.
Kanemoto said the tragedy "never would have happened had the spillway been restored as Mr. Pflueger was warned about."
The spillway is designed to prevent breaches by diverting overflow waters.
After Pflueger unsuccessfully challenged the manslaughter charges in the state appeals courts, he pleaded no contest in July 2013 to reckless endangering while his company, Pacific 808 Properties LP, pleaded no contest to the manslaughter charges in a deal with the Attorney General’s Office.
The state agreed to recommend probation with the possibility of some included jail time for Pflueger and the maximum fine of $50,000 for each manslaughter charge for the company. The total $350,000 fine was to be applied toward a dam inspection and safety program.
Pflueger had already submitted a cashier’s check for $350,000 to the court.
Valenciano rejected the $350,000 because, he said, "I don’t want to give the impression that this court is being bought."
He instead imposed a $7,000 fine and said the Judiciary cannot dictate to the Legislature what to do with fines deposited into the state general fund.
McCorriston had argued that according to a study Pflueger commissioned, the dam did not burst because of the covered spillway. He said there were many other factors and responsible parties.
Pflueger was among a number of defendants — including the state, Kauai County, former and current owners of land under the dam, including C. Brewer & Co., their insurers, engineering firms and contractors — to agree to a $25 million civil settlement in 2009 with the families of the seven victims and landowners whose properties were damaged by the floodwaters, including singer and actress Bette Midler.
