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The Honolulu Advertiser

Posted on: Friday, May 13, 2005

Record fine for polluter: $500,000

By Jan TenBruggencate
Advertiser Kaua'i Bureau

LIHU'E, Kaua'i — Retired auto dealer Jimmy Pflueger was ordered to pay a $500,000 fine yesterday for 10 felony counts of polluting the ocean off Kaua'i — the largest fine in state history against an individual for an environmental crime.

A 2004 photo of the Pila'a coastline on Kaua'i, shows where a storm in November 2001 brought large volumes of runoff sediment onto the shoreline and nearshore waters.

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The sum is a fraction of the millions of dollars Pflueger, 79, has paid or committed to pay following grading, water pollution, zoning and other violations at his property at Pila'a in the Hanalei district.

"Even 3 1/2 years later, there is still mud and still silt. The living rock on the reef is dead," said Amy Marvin, whose beachfront property was inundated by mud from Pflueger's just-graded property in November 2001, and whose family is suing Pflueger.

Pflueger built an earthen road and did other work without permits during 2001. During a November storm that year and afterward, large volumes of muddy sediment flowed onto coastal houselots, the beach and the Pila'a reef, turning the sand brown and damaging corals. In 2002, he built a trench and did other work without permits to alleviate some of the consequences of the mudslide, and those actions resulted in the charges for which he was fined yesterday.

Later, under government jurisdiction and with permits, he did extensive construction to alleviate the runoff problems.

"I think his costs will be well north of $5 million," said Pflueger's attorney, Bill McCorriston.

The remediation work includes engineering and construction of a retention basin with a stone dam and extensive landscaping to limit future erosion, as well as the eventual removal of the dam as the property is restored and the threat of further muddy runoff subsides.

Deputy county attorney Laurel Loo said she has been told that Pflueger's land and shoreline remediation costs are in the $7 million range.

Pflueger walked into the 5th Circuit Court building yesterday in blue jeans and a pale western shirt, looking fit and determined. He made no extended statement to the court, but after his sentencing he expressed his belief that any environmental damage would ultimately be healed.

"Nature cleans itself twice a day, on the high tide and the low tide," he said.

Experts hired by Pflueger and those hired by the state and other interests disagree over how much long-term damage the reef has suffered, but Pflueger apologized for his actions in a written statement issued by McCorriston.

"This all started when I agreed to help an elderly neighbor gain access to his home by offering to build him a road. While my motives were good, it does not excuse that the work was done without the proper permits, which I now realize was wrong. I want to do all that I can to make things right."

In court, Pflueger rescinded an earlier no-contest plea and pleaded guilty to 10 counts of state water pollution violations involving the trench built in February 2002 that altered natural drainage patterns and carried muddy storm water onto the shoreline at Pila'a.

Judge George Masuoka sentenced him to three years' probation and $50,000 on each count, for a total fine of $500,000 to be paid to a state Health Department fund for environmental crimes. Masuoka said he would not order Pflueger to make restitution to victims of his actions, as those issues are expected to be addressed in civil cases.

Although the charges carried a possible total of 30 years in prison, the state attorney general's office did not seek prison time and Masuoka did not assess any.

But not everyone agreed that was the right decision.

"I think he should go to jail, even for a week, so it would send a message that you can't buy your way out of damaging environmental resources that can't be replaced," Marvin said. "If there were some incarceration, developers would have been inspired to be a little more careful."

State deputy attorney general Christopher Young said the fine may be the largest issued against an individual nationwide for water pollution charges.

"We believe felony convictions and a $500,000 fine appropriately reflect the seriousness of these offenses," Young said.

Pflueger's original plea of no contest to 14 water pollution counts could have generated a higher fine, but it also generated concern from government regulators who felt there needed to be a formal admission of guilt.

McCorriston conceded that the demand for a guilty plea helped drive negotiations. "Federal authorities and others wanted Jimmy to enter a guilty plea," he said.

Pflueger still has a clutch of outstanding civil legal actions against him, although he may be near a settlement in several of those cases.

Loo said "the final technical details" are being worked out to resolve civil complaints brought by the U.S. Environmental Protection Agency, the Department of Health's Clean Water Branch, the Kaua'i Planning Department and Earthjustice on behalf of the Limu Coalition and Kilauea Neighborhood Association.

A resolution of a state Department of Land and Natural Resources investigation of reef and shore damage is ready to be brought to the Board of Land and Natural Resources, and a civil suit by the Marvin family and others is still outstanding.

Reach Jan TenBruggencate at jant@honoluluadvertiser.com or (808) 245-3074.