After the Flood

By Glenn Silber and Malia Zimmerman

Two years ago today, just before sunrise on the tropical island of Kauai, Hawaii, the Kaloko Reservoir Dam burst sending an estimated 400 million gallons of water crashing downstream, killing seven people in the valley below, causing tens of millions of destruction to public and private property, and the environment.
At first, the press and public assumed the flash flood caused by the breach of the more than century old, privately-owned dam was simply a natural disaster coming after more than a month of unusually heavy rainfall. But in the days and weeks that followed, reports surfaced that the Kaloko Dam, which held back the 30-acre reservoir, had never been inspected by the State Department of Land and Natural Resources, as Hawaii law requires once every five years.
The state tried shift the blame for this lack of inspection to the owner of the dam, car dealer mogul James Pflueger, one of the wealthiest and most prominent men in Hawaii, claiming he had not permitted inspectors on his property despite numerous requests.
Pflueger denied that charge and the Kaloko Dam disaster quickly became a highly controversial, contentious issue.
In the aftermath of the tragedy, Hawaii Governor Linda Lingle surveyed the damage, attended a community meeting in the small town of Kilauea where the deaths occurred, and promised a thorough investigation to determine the cause of the dam failure.
After the meeting, Mike Dyer, a local realtor with long ties to the community approached Gov. Lingle and told her investigators a remarkable story that led them to suspect that rather than being just a natural disaster, the dam tragedy may have been caused by human error.
Dyer claimed, and Kauai Country documents later confirmed, that in late-1997, the dam’s owner James Pflueger, had been illegally grading the land at Kaloko where he was planning waterfront home sites along the banks of the reservoir.
Dyer, who was a neighbor of Pflueger at the time, noticed that in the process of leveling a 50-foot high hill next to the reservoir, Pflueger’s earth-movers had filled in the dam’s main safety feature called a spillway. The spillway is a depressed area on one side of the dam designed to let water gently flow safely over the side of the dam in the event heavy rainfall filled the reservoir to dangerous levels.
Shocked to see the concrete spillway had been covered with dirt, Dyer says he wrote to Pflueger warning him of the potentially “dangerous situation”; but received no response to two letters Dyer says he faxed to him. Pflueger claims he never received Dyer’s communiqués.
Dyer was so concerned that he returned to the dam, took photos of the now covered spillway and sent them, along with a letter to the Hawaii Department of Land and Natural Resources. He says the state agency never responded to his letter and photos at the time; but eight years later, after the tragic loss of life and property from the dam breach, Dyer once again provided a copy of his letters and photographic evidence to state investigators.
Governor Lingle turned the case over to Hawaii State Attorney General Mark Bennett and the Hawaii State Legislature provided an immediate emergency fund of $1 million so his office could investigate the cause of the disaster. At the time, Gov. Lingle said Bennett, “…has a greater ability to get information quicker than anyone else does because of subpoena powers.” She added, “We are not presuming that there was anything criminal at all.”
Distrusting the state to investigate itself, community members in Kilauea formed a group called “Dam Mad” and demanded an independent criminal investigation.
There were also concerns among some of the flood victims’ families and community members that Bennett had a conflict of interest because he was a longtime associate in the law firm of Pflueger’s chief legal counsel, Bill McCorriston, and that he should recuse himself from the case.
Despite these concerns, Bennett said he was confident his office could conduct and “thorough and impartial” investigation. In the days after the deadly disaster, Bennett promised, “I will be able to tell the people of Kauai and the people of Hawaii that we have done everything possible to try to get them answers as to why this happened.”
However, after concerns were raised over the possibility of a conflict of interest in the statehouse, the Hawaii State Legislature passed a resolution calling for a special deputy to conduct an independent civil investigation. Bennett retained attorney Robert Godbey as a special investigator to conduct an independent civil review.
Working with a small team of investigators and a paltry budget, in six months time, Godbey produced an impressive 222-page report, replete with some 5,000 supporting documents in January 2007. Some of the Report’s findings and conclusions included:
-- A County of Kauai inspector had become aware of Pflueger’s illegal grading and sent him a stop work notice. But the county engineer was then called into the mayor’s office who told him “to stop all actions involving Mr. Pflueger” who then continued his illegal grading.
-- “In late 1997 or early 1998, earth was moved into the emergency spillway.”
-- “The evidence….suggests that the Kaloko Dam failed due to overtopping probably as a result of the lack of a spillway in the reservoir.”
Civil lawsuits by both the victims’ families and members of the community whose homes and property were destroyed are ongoing against Pflueger, the State of Hawaii and a local irrigation company that Pflueger claims was responsible for the dam’s maintenance. The civil trial is set to begin in February 2009 in Kauai's Fifth Circuit Court.
But was the Kaloko Dam disaster a crime?
After the Godbey Report was released 14 months ago, Bennett requested additional funding for his ongoing criminal investigation and has now received an estimated $2.5 million. But to date, Bennett has refused to discuss the investigation and he has repeatedly delayed promised announcements concerning the case. No charges have been filed and the criminal case is dragging on with no apparent resolution in sight.
This week, as the second anniversary of the Kaloko Dam disaster approached, Bruce Fehring, who lost his home, his daughter, his grandson and son-in-law on March 14, 2006, said, “There are people in positions of power who appear to be hoping we will forget about this. But if this is the case, they have severely misjudged the people of Kauai.”
Two long years later, the families of those who lost their loved ones, along with members of the Kilauea community, are still waiting for the results of Attorney General Bennett’s investigation. They want answers – and justice.