Woo vs. Harmon - Witness James Pflueger

David C. Farmer, Successor-Trustee vs. Harmon

(Formerly Woo vs. Harmon & Nicholson vs. Harmon)

CV05-00030 DAE KSC

U.S. District Court For the District of Hawaii

Judges: David A. Ezra; Kevin S. Chang

—

DEFENDANT’S WITNESS

JAMES PFLUEGER

Retired car dealer; developer; Commercial leasee of Kamehameha Schools/Bishop land.

Address to be determined.

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May 22, 2007

Pflueger case to test
protection of blogs

An isle Internet writer claims a
journalist's standard for secrecy

By Mark Niesse, Associated Press

A LAWYER trying to get an Internet writer to testify and turn over notes for a court case says Web bloggers should not have the same rights as mainstream reporters.

Attorney William McCorriston, in a lawsuit brought by landowner James Pflueger over the failure of the Ka Loko Dam, claims that Malia Zimmerman of Hawaiireporter.com is a blogger who is not entitled to withhold her sources of information.

But Zimmerman, an editor and reporter for the Web site, says she is a legitimate journalist, not just some hack who offers half-baked commentary on the news of the day.

"Any journalist who gives their word that they'll protect somebody's information or keep them in confidence, you have to abide by that," Zimmerman said. "It's not the medium you publish in, it's what you do with that information."

Circuit Judge Gary Chang has ordered Zimmerman to submit to questioning under oath by McCorriston, likely in June. She can refuse to answer questions, but she must explain her reasons for doing so, and the judge would later rule on whether she is justified.

Hawaii does not have a journalist shield law, like those enacted in 31 states to protect reporters' rights to keep their sources confidential.

That means there will be two issues for Chang to decide: whether Zimmerman is a real journalist, and whether reporters have a qualified privilege to refuse providing confidential information to lawyers in a civil case.

"It seems to me that if a blogger is a journalist, everyone can produce a blog and never be subject to a subpoena," McCorriston said. "Are all bloggers journalists? It's a question that's never been answered anywhere."

Hawaiireporter.com covers politics and business news, frequently from a conservative or libertarian perspective. It began publication in 2002, and Zimmerman said she does not consider it to be a blog, which generally is a Web site that posts a mix of fact and opinion.

Zimmerman is being asked to testify about her investigative reporting into the March 14, 2006, failure of Ka Loko Dam on Kauai, which unleashed a 20-foot-high wave of water that killed seven people.

Most of the land surrounding the dam is owned by Pflueger, who is suing the state and private companies over oversight of the dam. Pflueger also faces a criminal investigation and lawsuits over his responsibility for the accident.

As a consultant for ABC's news magazine "20/20," Zimmerman interviewed island residents who said Pflueger had filled in the emergency spillway with dirt. Pflueger has denied filling in the spillway, which some believe might have caused the dam to fail when heavy rain filled up the reservoir.

Her sharing of information from her sources as a consultant with ABC nullified any protection she would have as a journalist, McCorriston said.

"She's far more than a blogger. She's got an institutional publication. It just happens to come out on a computer," said Zimmerman's attorney, Jeff Portnoy, who will base his case on First Amendment rights guaranteeing freedom of the press. "She's not just sitting at home and every couple of days writing a note to people."

Zimmerman said her work for ABC was part of her legitimate journalistic role.

If she is compelled to reveal her sources, e-mails, phone records, notes and photographs, Zimmerman would be turned into a witness in the case rather than an objective observer, Portnoy said. Neither side has said what specific information Pflueger hopes to get from Zimmerman.

The courts will have to weigh how many press freedoms extend to the realm of the Internet, said University of Hawaii constitutional law professor Jon Van Dyke.

"How does she differentiate herself from the zillions of other people who use the Internet, posting things on MySpace or whatever?" he asked. "If we're going to give special protection to the press, we should have some idea of who's in it and who's not."

This case could drag on for years if Chang's decisions are appealed to the Hawaii Supreme Court, Portnoy said. Two lawsuits for wrongful death and property damage are scheduled to be heard in 2009.

http://starbulletin.com/2007/05/22/news/story09.html

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NEW DISCOVERY: December 17, 2007

April 9, 2006

Life Cut Short by Dam Tragedy

'Watery Wall of Death' Wipes Out Dreams, Future of Kauai Families; Kauai Residents Deal with Death, Destruction Brought on by Ka Loko Dam Breach; New Ka Loko Dam Breach Action Alliance Calls for Independent Investigation

By Malia Zimmerman, Hawaii Reporter

Editor’s note: This story came after a day of interviews with several people on Kauai affected by the Ka Loko Dam break, including Bruce Fehring at his home in Kilauea, Kauai. James Pflueger, owner of the dam, and his attorney Bill McCorriston, have not returned calls to Hawaii Reporter.

Kauai, Hawaii: The most difficult part of the March 14 Ka Loko Dam Breach tragedy for Bruce Fehring to talk about is the death of his nearly 2-year-old grandson, Rowan Fehring-Dingwall, who was swept away at 5:30 on that terrible morning in what Bruce describes as a "watery wall of death."

When the sun rose just an hour later that day revealing the magnitude of the destruction that more than 300 million gallons of water from Ka Loko Dam let loose upon his family and property, Bruce learned his eldest daughter, Aurora Fehring, her husband Alan Dingwall, and their son Rowan, were missing.

Also vanished when the 118-year-old dam burst above them sending a 35-foot high, 300-foot wide, violent, muddy wave down the mountainside, was his friend, Wayne "Banyan" Rotstein, who was the caretaker for the property and a partner in a new business to locally sell produce and flowers.

Missing also were three guests staying on the Fehring property. That included Tim Noonan, a carpenter who was between jobs and living on the beach, and had been invited by the Fehring family just weeks before to stay with them. And there was Christina "Sunny" MacNees, who was thrilled to be 8 months pregnant, and excited about marrying her fiancée, Daniel Arroyo, the following weekend. Those who knew MacNees say she lived up to her nickname "Sunny" with a sparking personality and radiant features, and was ecstatic about starting a new family.

Standing on what he feels like is his personal "Ground Zero" where his home once stood, and now there is only rubble and a hint of a cement foundation, Bruce recounts the tragedy and loss. Nearby, there is a twisted white lawn chair he has never seen before, one of his rowing shelves 25-feet up in the branches of a tree, and there are piles of more than 100-year-old trees uprooted when the "tsunami from the mountain" came down upon Kilauea town and decimated everything in its path. Just below is a sea of large copper-colored boulders exposed when the raging river viciously scarred his property. Where there was a clear-flowing stream, is now an angry river of mud racing down the mountain.

And most tragic, eight people including Sunny’s soon-to-be-born baby, who in one moment vanished from his home. The home he built 19 years ago to keep his five children and grandchild safely together -- a home he opened to friends -- on land he used to farm and grow produce they sold to support the family.

Bruce’s anger and grief over what happened has led him, and several other property owners living along Wailapa Stream who were impacted by the Ka Loko Dam breach, to form the Ka Loko Dam Breach Action Alliance. The 35-plus members want to ensure that the public and law enforcement investigating the breach remember it affected real people, destroyed precious property, homes, and crops, and tore apart families forever.

The members are a wide collection of people including farmers, a retired judge, a real estate broker as well as a representative for mega movie star Bette Midler, whose property sits just across from where Bruce’s family and friends were swept to sea, he says. Bruce says, "We reached out to more people along the stream, and about 80 percent of them joined our alliance."

Most importantly, the Alliance members want to make sure that whoever is responsible for the dam breach -- quite possibly James Pflueger, who owns most of the land on which the dam sits -- is held responsible and legally liable for the havoc reaped on so many lives.

Many of the members believe it was Pflueger’s alteration of the dam and spillway that caused the reservoir to fill up with more water than the dam was ever intended to hold, water that Pflueger wished to used for recreational purposes.

These are accusations Pflueger adamantly denies in statements issued through his public relations firm and attorneys, but that is under investigation by the state attorney general and Army Corps of Engineers, whose investigators say they cannot find even a hint of a spillway.

Many of the people in the new Alliance are supporting one another, and that has helped tremendously, Bruce says. They have shared their concerns with one another, such as how the value of their property has plummeted, including property that was on the market to sell, yet their county property tax assessments that just arrived in the mail are record high and do not reflect that drop in value. Their privacy is gone, because many tall broad trees that grew along the Wailapa Stream are now vanished. There is a massive loss of soil and there are piles of rotting wood and debris everywhere. And they’ve lost their homes, but not their mortgage, and the crops they grew and sold to pay their mortgage and other living expenses are decimated.

An active real estate broker, Bruce says that there is a massive impact on the value of properties directly affected by increased noise, loss of soil and plantings and in his case, the stigma of a death scene.

In addition, there is tremendous impact to the environment all along the mountainside and down to the ocean, Alliance members say. "This is an unprecedented disaster for reef, estuary and environment," Bruce says, noting much of the property and ocean in the wall of water’s path, are under inches of silt and debris.

And there are many historical Hawaiian monuments, rare Hawaiian plants and even burial sites that also were taken out in the destruction, he says: "There is significant damage -- there is a total loss of evidence and archaeology of Hawaiian habitation in this valley."

The Alliance also plans to get active politically so the members can help ensure a tragedy like this never happens again. Part of the problem, members say, is the way dams are ranked as "high risk" or "low risk". The rating is not assigned by the condition of the dam after it is inspected, rather the national rating is set by how many people would die, or how many businesses would be swept away, if the dam breached. In Ka Loko’s case, it was rated "low risk" because there were few people living below, Bruce says, and the Department of Land and Natural Resources Director Peter Young, agrees with Bruce’s assessment.

The Alliance members also want to make sure the investigation into the dam tragedy is investigated thoroughly and properly. Members are concerned that the state attorney general’s office should not be involved in the investigation because the state Department of Land and Natural Resources is a state agency, and Peter Young, its director, admitted Ka Loko dam was never inspected even though state law requires inspections every 5 years.

Alliance members say they are concerned the state will not fairly and completely investigate its own failures, and Monday, the Alliance will hold a press conference at their "Ground Zero" and call for an independent investigation. Congressman Neil Abercrombie has requested a federal investigator take over, but U.S. Attorney Ed Kubo told Hawaii Reporter on Friday that this is unlikely to happen because the federal government has no jurisdiction. State Attorney General Mark Bennett says he will cooperate if the federal investigators take over, but says his office is able to objectively handle the case and "let the chips fall where they may."

Through the last three weeks, Bruce learned how fleeting life can be -- and how in a moment, the most precious gifts in life -- much-loved family -- can be ripped away.

Besides dealing with tremendous overpowering grief, and helping his family, including four other children, ages 12 to 22, deal with the death and destruction of family they so loved, Bruce also is facing serious financial troubles. The insurance company says it will not cover the damage to the Fehring property and homes, because it is classifying the dam breach as a "flood" rather than a dam breach. The Fehrings don’t have flood insurance because they do not live in a designated flood zone.

Unsettling is the fact that Bruce, who regularly attends grief counseling with his wife, Cindy, has never found the body of his grandson. His son-in-law was the first victim discovered, and his daughter Aurora, the last.

For now, Bruce and his family will have to cherish the memories they have.

Hawaii Reporter Story

~ ~ ~April 11, 2007

State Workers Cleared of
Ka Loko Criminal Responsibility?

Attorney general sees "no evidence" against them

By Tina Shelton

Nearly a year after the fatal breach of Ka Loko dam, there is a clear indication no state employee will be criminally prosecuted in connection with the deadly disaster.

Mark Bennett, the Attorney General of Hawaii, told KHON2 News, “There is no evidence of any kind that I have seen that any employee of the state of Hawaii is criminally responsible for the deaths of anyone."

Ka Loko's failure last March killed 7 people.

State attorney general investigators and hired experts have poured over Jimmy Pflueger's land to learn whether un-permitted construction triggered the collapse.

Pflueger's lawyer, William McCorriston, took the mic at a senate hearing and took a shot at the state land director, sitting just feet away.

“Why do we provide the Director of Land and Natural Resources,” William McCorriston asked, “who some might say is criminally responsible for nonfeasance, not doing his job with regard to dam inspections, with absolute immunity?”

Dam inspections fall under the land department, and McCorriston says like the leader of FEMA after Hurricane Katrina, DLNR Chief Peter Young should go.

KHON2 News asked Peter Young about that.

“Mr. McCorriston is trying to deflect attention away from his client,” Young said. “We trust the judicial system.”

The attorney general, also watching while McCorriston testified, went farther in defense of Young and his land department.

"There's no evidence that any state employees are guilty in the homicide of these individuals," Bennett told KHON2 News.

Yet Bennett says the decision whether to prosecute Pflueger or others is still pending.

“I believe when we get to the middle of this year,” Bennett said, “we will be very close to a final decision of whether to take this case to a grand jury or not.”

The legislature must fund the continuing criminal and civil liability investigations. McCorriston was making his case to those lawmakers.

“Why do these few people have a special pass,” he asked. “Why do they get a whitewash of their responsibility?”

Although they allowed McCcorriston to vent, there's no indication lawmakers will turn down the attorney general request for $2 million to continue his investigation.

However, Judiciary Chairman Clayton Hee told KHON2 News his committee might examine whether the immunity from certain liability afforded to the state land director and dam inspectors, should be withdrawn.

http://www.khon2.com/home/ticker/5815366.html

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January 10, 2007

Neglect led to Ka Loko break

Several key legislators promise to use the conclusions of
a special report to reform state laws on dam safety

By Diana Leone, Star-Bulletin

The March 14 breach of Kauai's Ka Loko Dam "was obviously a huge human tragedy and ecological disaster," special Deputy Attorney General Robert Godbey said yesterday after delivering his investigative report to the Legislature.

"It would be an even greater tragedy if we don't learn from it," he said.

Several key lawmakers who received Godbey's two-volume report yesterday agreed and pledged to use his work to change state laws on dam safety.

Rep. Mina Morita, a Kauai Democrat whose district includes the disaster site, said she will use Godbey's work to introduce legislation.

"I think it's really important," Morita said. "The report was really clear in pointing out shortcomings of the (current) statute," which was written in 1987.

So did Sen. Russell Kokubun (D, Kalapana-Volcano) and chairman of the Senate Water, Land and Agriculture Committee, and House Speaker Calvin Say (D, Palolo).

Kokubun said he expects to hold an informational briefing about the report by the end of the month, where lawmakers can ask questions about it.

"I think he did a very good job, a commendable job in laying out the history" of the Ka Loko incident, Morita said.

"He was walking a fine line because of the numerous civil lawsuits that are out there right now, in presenting the facts as he saw them," Morita said.

Morita also complimented Godbey for giving some context on Hawaii's aging agricultural water systems. The sugar industry used to fund upkeep of complicated upcountry water systems, but with that industry almost gone, the systems are falling into disrepair and neglect, she said.

With sugar's "huge economic engine" no longer paying for many of Hawaii's rural water systems, "I really do think we (in Hawaii) have reason to be concerned," Godbey said. Another factor to consider is how earthen dams are susceptible to earthquakes, he said.

An estimated 1.6 million tons of water rushing from the Ka Loko Reservoir before dawn on March 14 killed seven people, destroyed two homes, damaged a state highway, and left debris and wrecked lands behind.

Godbey was chosen by state Attorney General Mark Bennett from a field of five attorneys picked by state lawmakers. Some had not wanted Bennett in charge of the investigation because he was formerly a law partner with an attorney representing James Pflueger, owner of Ka Loko Dam.

"The Legislature wanted someone who would do a thorough and diligent and thoroughly independent job," Bennett said yesterday, adding that Godbey's work was "completely independent; I had no input into the contents at all."

Bennett said yesterday that his separate criminal investigation of the Ka Loko Dam incident is ongoing.

http://starbulletin.com/2007/01/10/news/story01.html

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June 27, 2002

Council widens search for grubbing violations

By LESTER CHANG - TGI Staff Writer

Kaua'i County has taken to the air in a stepped-up effort to track landowners who conduct unpermitted grubbing and grading on their properties.

The search is underway in the skies over the North Shore and East Kaua'i.

At a council meeting at the historic County Building Wednesday, a county representative said government officials flew over nine properties in a helicopter on June 21 and found a few cases possible unpermitted grubbing and clearing.

Kaua'i County Councilman Jimmy Tokioka recommended more aerial surveys for the entire island to prevent abuses.

"It seems prudent to us that the entire island is inspected," Tokioka said. The council subsequently approved on first reading a $10,000 money bill for more aerial surveys, scheduling the proposal for a public hearing on July 11. The bill will be reviewed by the council committee of the whole.

But even if the county intensifies its efforts to address unpermitted work, it would still would not have enough manpower for monitoring or enforcement actions, county officials said. County employees already investigate such complaints, and the additional workload could strain their effectiveness.

The call for expanded violation checks comes on the heels of a public outcry for action against North Shore landowner James Pflueger for alleged unpermitted grading on his property in Pila'a that allegedly sent runoff and mud onto a home along the coast at Pila'a Bay on Nov. 26.

Pflueger also allegedly had culverts constructed without permits to divert water away from the home belonging to the family of Rick and Amy Marvin.

The county may take criminal action or civil action against Pflueger because of the alleged incident.

Participating in the aerial check were Wallace Kubo, an engineer with the Kaua'i County Public Works Department, Les Milnes, a county planning department inspector, Mike Laureta of the state Department of Land and Natural Resources, Deena Renti-Cruz, a county deputy prosecuting attorney and Councilman Randal Valenciano.

Kubo reported the group flew over:

- Puakea Golf Course, finding permitted grading, but saw work on some holes that needed a permit. As a result, the county has requested Grove Farm, the owner of the project, to apply for permits.

- Mauka areas in Kealia, spotting a clearing used for agriculture. The parcel is exempted from the county grading ordinance because the work falls under the jurisdiction of the National Resource Conservation Services, which assists farmers with agricultural pursuits and reviews their land use plans.

- Makai areas in Kealia, where no grading activities were found.

- A clearing by Kaloko reservoir on mauka land Pflueger owns in the Moloa'a area. No grubbing permit was required for the land, measuring less than an acre. However, there may be grading in the area, and the county has asked Max Graham, a Kaua'i attorney representing Pflueger, for permission to visit the site.

- Makai land Pflueger owns in Pila'a, where construction of a driveway occurred. The county has made a request to Graham for a site visit.

County officials also would like officials with the state Department of Land and Natural Resources and the state Department of Health to go along on the visit.

- Land owned by Moloaa Bay Ranch, where a pad for a building and terraces were constructed. Kubo said the county issued an-after-fact permit for the pad, drawing groans from audience members.

- Property in Kilauea owned by John Wells, on which grading was approved by the county.

- The bluff above Kauapea Beach, where three landslides occurred. Kubo said it didn't appear the landslides were connected with any grading work. But councilman Gary Hooser disagreed, saying that he believed the erosion was caused by the cutting down of trees. In response, Kubo said that if the council wanted, the county would get permission from the landowner to check the damage.

- The Kalihiwai Ridge, where some grading work has occurred. County workers plan to make a site visit.

Ray Chuan of Hanalei said the county should have moved quicker against the grading on the Pila'a lands and said he was "offended by the administration" for issuing after-the-fact permits.

County officials have said they want to pursue all administrative remedies, including citations and compliance by violators, before filling court action against them.

To further put a lid on violations, councilman Bryan Baptiste suggested a county representative sit on a plan review panel of the East Kaua'i Soil Conservation Service and West Kaua'i Soil Conservation Service.

The groups are connected with the National Resource Conservation Services, a federal program to assist farmers with agricultural pursuits.

Most unpermitted activities occur on during the weekends when county employees don't work, said Wallace Rezentes Sr., administrative assistant to Mayor Maryanne Kusaka.

The problem is so severe, Hooser said, that (we) "almost need a hotline, one person or a small team" to document complaints and follow up on them.

But people can already file complaints with the county's public information or with him, Kubo said.

Related to Pflueger's case, Hooser said he is not convinced work has stopped on his property.

County officials reported remedial work was under way at the property, but work involving large-scale grubbing or grading had stopped, Hooser said.

But a June 20 video tape showed a large plume of dust rising from Pflueger's property in Pila'a, indicating ongoing work, Hooser said.

He thanked a Kaua'i resident for sending a copy of the tape to the county.

Before the county continues its investigation against Pflueger, it should immediately launch an investigation into unpermitted work in Waipake in Kilauea about a decade ago that severely damaged his family property, said Randy Rego.

Rego said he filed a complaint with Kubo, waited many years with hopes of resolution, but came up empty handed, adding "what happens, zippo."

After the meeting, Kubo said the "process takes time, not overnight you get something done."

In related action, the council approved $5,000 to hire an attorney to advise the council on setting up the procedure for an investigation into the problem.

County Attorney Hartwell Blake said he is concerned about the statue of limitations for action on the work at Pila'a last year.

If violations are determined, the county has 60 days from the day of the alleged violations, which are dated on Nov. 26, to take action, Blake said.

Blake said his office is researching whether the statue of limitation runs from that day or "whether failure (by government) to remedy an infraction constitutes an ongoing occurrence."

If the council initiates an investigation, photographs going back five to ten years showing the topography of a parcel should be secured, said Council Chairman Ron Kouchi.

The photographs are likely to show changes to the landscape and could reveal what work was approved or not approve by the county, Kouchi indicated.

www.teresatico.com/pflueger_case/articles/article_6-27b.html

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James Pflueger is expected to testify regarding his business, political and personal relationships with Kamehameha Schools/Bishop Estate, Dee Jay Mailer, Edwina Clarke, Bishop Museum, Mark Polivka, Hawaii Biological Survey, Nature Conservancy, Starr Foundation, Faye Kurren, Dianne Plotts, Ron Poepoe, Marsh & McLennan, William McCorriston, Jon Miho, William Tam, Margery Bronster, Colleen Hanabusa, Jeffrey Watanabe, Gilbert Tam, Bank of Hawaii, Walter Dods, First Hawaiian Bank, Duncan MacNaughton, MacNaughton Group, Bert Kobayashi, Kobayashi Group, PMK Development, LLC, Don Heacock, Department of Land and Natural Resources, Hawaii Department of Occupational Safety & Health, Jeremy Harris, Colbert Matsumoto, Linda Lingle, Mark Bennett, Robert Colman Godbey, James Nicholson, David Farmer, and others to be determined upon discovery.