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The Honolulu Advertiser
Posted on: Tuesday, April 11, 2006

Distrust rampant at site where dam failed

By Derrick DePledge and Treena Shapiro
Advertiser Government Writers

KILAUEA, Kaua'i Standing on the violently scarred land where he said his family's dreams were shattered, Bruce Fehring, who lost his daughter, his grandson, his son-in-law and four friends when the Kaloko dam failed last month, called yesterday for an independent investigation into the cause of the fatal breach.

"What occurred was not an act of nature; it was a failure of man," said Fehring, a real-estate broker, who read carefully from a prepared statement. "Within the blink of an eye, the entire area where you are standing and the area all around and in front of you was under close to a half-billion gallons of roaring water and massive tons of debris, snapping huge old trees like toothpicks and sweeping away everything in its path.

"The true story of how this happened, and the history and the circumstances and the way it came to happen, must be told. And that can only be done fairly and without a concern for bias by a vigorous, effective, experienced and independent investigation."

Fehring and many of his neighbors along the once-lush Wailapa Stream have formed an alliance to try to convince Gov. Linda Lingle and state lawmakers to appoint an independent investigator. They began circulating a petition over the weekend and have gathered dozens of signatures.

State Attorney General Mark Bennett, whose office is leading the probe into the dam failure, has promised a thorough investigation. The state Department of Land and Natural Resources has acknowledged that it has no record of ever inspecting the dam, which was supposed to be safely maintained by private owners.

But the alliance, and what appears to be a growing number of state lawmakers, believes Bennett may have difficulty investigating the actions of other state agencies, and that he has the appearance of a conflict because he once worked in the same law firm as William McCorriston, the attorney for retired auto dealer Jimmy Pflueger, who owns property around Kaloko.

FAST ACTION SOUGHT

Fehring, in his first extensive public comments since his family and friends were killed in the flooding after the breach, asked the state to move rapidly. "It is imperative that an outside investigator, with no ties to the state or private parties, be retained, immediately, before critical evidence is lost," he said.

At the state Capitol yesterday, two House committees passed a resolution supporting an independent investigation. The resolution calls for the attorney general to appoint a special deputy to conduct an independent and impartial investigation.

Last week, the state Senate's Ways and Means Committee agreed to allow money in an emergency spending plan for storm damage to be used for an independent investigation but did not specifically endorse an outside probe.

"The state investigating itself is the same as a student grading their own test," said Amy Marvin, who lives about a mile from Kaloko and who said her home was severely damaged in 2001 by a mudslide that originated on Pflueger's property.

But Bennett said there is no legal reason his office should not proceed with the investigation. He said outside counsel would be brought in to represent the state if it was found culpable.

"I just vigorously contest any allegation or suggestion that the type of work that my office would do in this case would be other than vigorous, aggressive and strictly according to law," Bennett told House lawmakers.

Bennett also cautioned that it would be bad precedent to declare a conflict because he used to work with McCorriston. Future civil or criminal targets, he said, could attempt to remove the attorney general from an investigation by hiring the attorney general's former law firms.

Bennett also pointed out that his office was involved with the federal government in an environmental case against Pflueger that led to a $7.5 million penalty.

REASSURANCE OFFERED

Lawmakers said they do not question Bennett's integrity but want to make sure people are satisfied the Kaloko investigation is fair.

"The issue is so many people died and so many lives were damaged or ruined and the people are owed an independent investigation. It's as simple as that," said state Rep. Brian Schatz, D-25th (Makiki, Tantalus). "We have the authority to go ahead and do this the right way and make sure nobody has any questions."

State Rep. Hermina Morita, D-14th (Kapa'a, Hanalei), said the dam breach was not an isolated incident. "There were other events for several years that led up to the dam breach, and (residents are) very concerned about inaction on the county part and inaction on the state part," she said.

Lingle, who was at a panel discussion on dam safety in Koloa last night, said it could be appropriate for the Legislature to name an investigative committee to analyze issues surrounding dams.

"But as far as the case itself, I think the attorney general is the appropriate person to continue to investigate," Lingle said.

'HALF A LOAF'

U.S. Rep. Neil Abercrombie, D-Hawai'i, and state Sen. Gary Hooser, D-7th (Kaua'i, Ni'ihau), who have both urged an independent investigation, appeared with Fehring at a news conference yesterday and walked along the jagged landscape where the water rushed downstream.

Both said they envision something like an independent counsel or a special master that would be able to remove any doubt about a state conflict.

Hooser described the Senate Ways and Means Committee provision as "half a loaf."

"I'd like the attorney general to step aside, do the right thing, support an independent investigation and let that move forward," Hooser said. "Until we do that, we, as a community, will not have faith and confidence."

Abercrombie said he hoped the governor or the Legislature would step forward. "You have to have the confidence of the people of this state that this is being handled correctly," he said.

U.S. Rep. Ed Case, D-Hawai'i, who represents residents here, said in a separate interview that an independent investigator is an option. But he said he has seen no reason yet to remove Bennett because the attorney general has vowed a complete investigation.

"I don't have any reason to conclude, currently, that that's not what Attorney General Bennett is trying to do," Case said.

But many residents said they will not trust anything less than an independent investigation. The Kaloko Dam Breach Action Alliance has made "Dam Mad" T-shirts and stickers and has begun to organize beyond the North Shore.

"This is an ecological disaster," said John Hawthorne, who lost portions of his five acres near Wailapa stream to flooding.

"The only way that people are going to be satisfied is to get this out of the state's hands."

POIGNANT REMINDER

On Fehring's land, a wooden easel wrapped with maile lei held a pastel painted by a family friend on Maui. The painting depicted Fehring's daughter, Aurora Fehring, and his son-in-law, Alan Dingwall, holding his young grandson, Rowan Fehring-Dingwall, in their arms. Photographs of the other victims Christina Macnees, Daniel Arroyo, Wayne Rotstein and Timothy Noonan were arranged alongside the painting.

The easel was on a rectangular concrete parking slab that led to a narrow walkway and the front step of a house that had vanished, leaving only an ugly stain of dirt and debris. Fehring said he has no idea whether his family and friends were inside during the flooding and, looking at the path where the deadly water likely smashed through the house, he has a hard time imagining what might have happened.

"I haven't touched it," Fehring said. "Nothing has been touched."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com and Treena Shapiro at tshapiro@honoluluadvertiser.com.


Correction: Amy Marvin's name was misspelled in an earlier version of this story.