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The Honolulu Advertiser
Posted on: Thursday, August 10, 2006

Pflueger suit faults state, C. Brewer

By Jan TenBruggencate
Advertiser Kaua'i Bureau

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LIHU'E, Kaua'i Attorneys for Jimmy Pflueger filed a suit yesterday arguing that both the state and former reservoir owner C. Brewer knew about possible problems with Kaloko dam, but that neither ever took action to protect the dam nor informed Pflueger before Kaloko burst March 14, launching a flood that killed seven people downstream.

In a separate legal action yesterday, downstream property owners including entertainer Bette Midler filed a complaint against Pflueger for property damage from the flood, saying Pflueger had altered the Kaloko Reservoir and dam, and that he had been informed that his alterations made the dam potentially hazardous, and that he failed to warn people downstream about the threat.

Between 300 million and 400 million gallons of water stored in the reservoir surged down the small Wailapa Stream valley before dawn on March 14, carrying away thousands of trees, overwhelming the downstream Morita Reservoir, severely undermining Kuhio Highway and sweeping away two homes where seven people slept. While the highway has been repaired with emergency funding, most of the flood debris remains in place five months later.

The heirs of six of the victims filed a claim in June against Pflueger as the reservoir owner, saying his actions led to the dam's breach. Yesterday's complaint against Pflueger was filed by the same group of attorneys, Richard Fried, Bert Sakuda, Thomas Grande and Teresa Tico, who filed the June complaint.

PFLUEGER RESPONSE

Pflueger lawyers William McCorriston, David Minkin and Becky Chestnut, in a comprehensive legal response in Honolulu Circuit Court to accusations of Pflueger's responsibility for the breach, asked that any judgment against Pflueger be charged to the reservoir's former owners and its operators rather than Pflueger as the landowner.

Pflueger lead lawyer McCorriston said that state and federal officials were on notice about possible problems with the dam as early as 1982 long before Pflueger bought the reservoir and not only had no one told Pflueger that the dam had any potential weakness, but even if he had known, he could have done little about it.

"He has absolutely no legal right to control the water level," McCorriston told The Advertiser yesterday afternoon.

DEFENDANTS NAMED

The complaint names as defendants the state, C. Brewer & Co. and several of its various subsidiaries, former Brewer subsidiary Kilauea Irrigation Co., its current owner, Thomas A. Hitch, and his company, Hitchco.

State Department of Land and Natural Resources Chairman Peter Young said yesterday he had not seen a copy of the suit and could not comment. Hitch, too, said he had not seen the complaint and could not comment. Brewer chief executive Alan Kugle did not return calls made to his office late yesterday.

The reservoir and dam were built in 1890 by Kilauea Sugar, which became a C. Brewer subsidiary. The plantation closed in the 1970s, and the reservoir was sold to Pflueger in 1987. However, Brewer's Kilauea Irrigation Co., which supplied water from the reservoir to area farmers, retained the right to use the water.

Yesterday's suit by Pflueger says the dam breach exposed problems with the construction of the dam that it was built on alluvial soil and was built using an outmoded means of construction that did not include mechanical compacting of the fill material and thus that it was defective by modern dam-construction standards.

The suit says a 1982 Soil Conservation Service study noted seepage at the base of the dam and raised questions about its safety. The federal government, state and Brewer were aware of the study, but the state never required Brewer to correct deficiencies, the suit said. Pflueger's suit says Brewer sold him the reservoir knowing it was getting rid of a liability, but never informed him of potential problems.

NO ACTION ALLEGED

The management of the water system, including the reservoir, was the legal responsibility of Brewer subsidiary Kilauea Irrigation, but Brewer never properly funded the company and never properly maintained the reservoir, the complaint says. Pflueger filed complaints with the state Public Utilities Commission in 2001, and its staff inspected the reservoir, noting problems with maintenance, the complaint says. It includes copies of PUC staff memos to that effect.

"The PUC took no action to ensure the maintenance problems were corrected," the complaint says.

Brewer eventually sold the irrigation company to Hitch for $10 three months before the breach, and Hitch acquired the responsibility for maintenance of the system. Hitch failed to maintain the system properly, and failed to notify state authorities of problems with the dam, the suit says.

CONSPIRACY CHARGED

Pflueger also accuses several people of conspiring to identify Pflueger as the person solely responsible for the dam breach. Among those named is Hanalei attorney Teresa Tico, who represents some of the victims of the flood.

"This is a typical response for Mr. Pflueger, who always blames the victim and won't take personal responsibility for the harm he has inflicted upon others," Tico said. She said the conspiracy allegations are "frivolous, unfounded and a complete fiction."

In their claim against Pflueger, nearly 40 property owners in the Wailapa Stream area filed a complaint for damages to their properties from the Kaloko flood. They cite destroyed buildings, crop losses, lost landscaping, loss of use, distress and other problems, and ask for both actual and punitive damages.

The first name on the defendant list is that of Bette Midler, who is listed as being "also known as Bette von Haselberg." The other names on the list include many residents of properties along the stream, but not all of them. Several have said they simply want to get on with their lives and are not interested in legal actions.

Reach Jan TenBruggencate at jant@honoluluadvertiser.com.