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Ka Loko Dam case drags on in appeal

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More than five years after the breach of Ka Loko Dam on Kauai led to the deaths of seven people, a state appeals court heard arguments yesterday on whether manslaughter charges against landowner James Pflueger should be dismissed.

A three-judge panel of the Intermediate Court of Appeals heard Pflueger’s lawyer, William McCorriston, argue that the prosecution violates his client’s right against double jeopardy and that the evidence doesn’t support the manslaughter indictment returned by the grand jury.

But Mark Bennett, the former attorney general, told the court that Pflueger already achieved what he wanted by filing an appeal on double jeopardy grounds to delay the trial.

Bennett urged the court to uphold Kauai Circuit Judge Randal Valenciano’s refusal to dismiss the charges in January 2010.

The criminal trial proceedings were suspended pending the outcome of the appeal.

As is customary, the appeals judges adjourned the session without indicating when they will rule.

McCorriston later said his client had a right to an immediate appeal of Valenciano’s ruling on the double jeopardy issue. "We raised the issue because we should win," he said.

If the appeals court rules against them, they will ask the Hawaii Supreme Court to review the decision, McCorriston said.

Pflueger, 84, who owns Ka Loko Reservoir, is charged with manslaughter in connection with the breach on March 14, 2006, that sent water rushing to Kauai’s north shoreline.

He is accused of filling in Ka Loko Dam’s safety valve spillway in 1997 and disregarding the risk that the dam might break and kill people.

Bennett said the 375 million gallons of water from the 43-acre reservoir could cover a football field at a height of 1,100 feet.

Pflueger "treated this land and reservoir as his personal fiefdom," Bennett said.

McCorriston argued Pflueger’s 2003 conviction for illegal grading at the reservoir bars the manslaughter prosecution on double jeopardy grounds.

But Bennett argued that the illegal grading conviction did not involve the filling of the spillway and does not bar the manslaughter prosecution.

He also argued that the evidence supported the indictment.

Bennett had handled the prosecution when he was attorney general. He is now in private practice but represented the state yesterday without pay.

Pflueger, who did not attend the hearing, also faces federal tax charges.

He is accused of not reporting profit of a California land deal and a conspiracy of reporting personal income as business expenses.

The federal trial on the tax charges is scheduled for next year.

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