ELEPHANT IN THE DOGHOUSE

ELEPHANT IN THE DOGHOUSE: Kaua`i usually gets the shortest of shrifts when it comes to the two Honolulu dailies.

But when the big guns air lift in such as they did yesterday to bring Jimmy Pflueger to justice for murdering seven people (ok “allegedly”- there ya happy now) not only does the Advertiser fetch Diana Leone out of mothballs but the Star Bulletin adds insult to injury by asking downsized Tom Finnegan to file a “special to” report.

And as they and the local paper’s Michael Levine reported, Mike Dyer wasn’t the only one to warn Pflueger about filling in a spillway. The grand jury heard from Tom Hitch- who operated the irrigation system. He did the same and was also told to get lost.

The problem is that the picture that the Honolulu-bound get is one that Pflueger’s lead attorney attempts to paint- that somehow Pflueger isn’t to blame because the state and county didn’t stop him... kind of like saying a bank robber isn’t guilty because no one stopped him until after he robbed it.

And so a comment typical of many appeared below Leone’s piece today saying

Don't comment on this story until you have read the Kaloko dam report for yourselves. After reading that you can see that it wasn't one man all alone at that dam working all the construction himself to create that hazard. Do you know how OLD that man is? There was plenty of contributors to this tragedy, the STATE, and people like THE MAYOR, have some blood on their hands too, even if they dont (sic) want to admit it with such an accessable (sic) scape goat (sic) right there.

The incomplete, quickly-assembled “report” notwithstanding, no one is saying that the state and county weren’t lax, perhaps intentionally and corruptly on the part of the county and former Mayor Maryanne Kusaka who Pflueger says took a bribe from him to make sure the county looked the other way, if Malia Zimmerman’s report is to be believed.

How that somehow exonerates Pflueger is hard to fathom.

The fact that few outsiders know is that Ka Loko wasn’t the first time Pflueger made headlines on Kaua`i.

Two prior incidents- the infamous Pflueger “berm” and the Pila`a mudslide that presaged Ka Loko- should have raised red flags with county administration officials and did with the county council, especially then Councilperson Gary Hooser, when outraged local resident successfully demanded stricter grubbing and grading regulations.

During the “Developers Gone Wild” series of county council meetings over almost a year long period Hooser demanded that the matter be kept on the agenda every week as citizens presented weekly videos of the damage that Pflueger did, along with that caused by developer Tom McCloskey who also enjoyed a “special relationship” with Kusaka. McCloskey donated huge sums to a favorite charity foundation Kusaka controlled and allegedly promised her a luxury oceanside home in his Kealia Kai development.

The first time people on Kaua`i heard the name Pflueger- other than in ads for his Honolulu car dealership- was in the early 90’s when a “berm” appeared along the highway- a 40 foot high embankment that Pflueger illegally constructed on his property’s border without permits and with Pflueger at times seen personally driving the heavy equipment.

The Pflueger Berm, as it became known, blocked ocean view planes and after much protest he was made to take it down.

According to residents- many of whom told their stories before the county council- Pflueger has always had his scofflaw attitude, one that he had learned from McCloskey.

Historically on Kaua`i all that was ever done when illegal construction was done - especially so-called “grubbing and grading” which often included the flattening of hills and mountains- the only punishment the county had ever imposed had been to fine the developer a small amount of money and then usually allow them to file for “after the fact” permits which allowed construction that would have never been allowed in the first place to remain, sometimes with minor and usually useless “mitigations”.

It was way cheaper and more productive to just go ahead and do the dirty work and pay the fines and wind up with what they wanted than to go through the county permitting system and risk being denied.

One complicating factor- one that still has not been “fixed”- is that there were then and still are not now any administrative rules on the books for grubbing and grading fines on Kaua`i even though they were promised by Costa “within six months” after the new grubbing and grading ordinance was passed. The only way for the county to proceed is and was through judicial proceedings with a penalty of only up to $1000 and six months in jail.

But even after the berm episode the only lesson Pflueger apparently learned was that if he were going to do these things without permits, don’t do them along side the highway and block view planes.

His next move was to construct a road- with no plans or permits, using a bulldozer he rode himself- leading down the cliff side of his Pila`a property just above the kuleana of Rick and Amy Marvin.

And when the next heavy rains came a short time later the mountainside fell on top of the Marvin’s tiny house and the beach next to it, killing the reef by burying it under a few feet of mud.

This time Pflueger was fined by the federal government in what was the biggest fine of it’s type ever levied at the time. He still faces- and has managed to stall for many years- a civil damages lawsuit filed by the Marvins.

Then came Ka Loko.

Today Levine for the first time in the mainstream media reports part of what PNN has reported many times in the past:

Bennett also told Valenciano that the Grand Jury had heard testimony that Pflueger had filled in the spillway himself because the permitting process “took too long.” Bennett said illegal grading had been done on the North Shore property in the late 1990s to make room for a private home and a 49-unit condominium project that would have increased the land’s appraised value from $19 million to $68 million.
And Finnegan ends his piece by saying:

Bennett also provided evidence that, while doing the grading work in 1997-98 that allegedly caused the spillway to fill, Pflueger was making home sites so that he could subdivide his land and the land around the reservoir owned by the Mary Lucas Trust, of which he was a trustee and beneficiary.

Now we’re getting somewhere. As we have reported before, according to two sources- FOJ’s or Friends of Jimmy as many called them- this was the whole motive for filling in the spillway- to provide a “lake” as Pflueger called it and provide the “best water skiing on the island” as he told his FOJ's and even promoted in his plans for the development.

To say the county was at best negligent and more likely and apparently complicitous is not a new charge here on Kaua`i. And although the state was technically responsible under a then little known law requiring them to inspect reservoirs in practice the state depended on the county for enforcing grubbing and grading violations without which the dam probably wouldn’t have had any problems.

The county did it’s level best to look the other way, at times even falsely claiming to the council that it was impossible get access to the property unless Pflueger allowed them in until the council appropriated money to at least take an aerial look. As PNN reported at the time the Public Works Department hadn’t even asked the county attorney regarding entry and Kusaka had blocked them from doing so.

Then, after all that, after all the red flags, after all the uproar, after Pflueger was even fined again, this time for grubbing and grading just above the reservoir, the dam broke and killed seven people.

And despite that the current county council is still intent on spending millions defending the county rather than cooperating in the investigation and seeking to settle.

Yes, the county quite obviously is responsible too. And if criminal charges are pursued against Pflueger, to let Kusaka or County Engineer (CE) Cesar Portugal and Deputy and once-acting CE Ian Costa (who is now Planning Director)- both of whom knowingly did the bidding of Kusaka in obstructing any investigations- off the hook is certainly an abuse of prosecutorial discretion on the part of Attorney General Mark Bennett.

So of course Pflueger’s lawyers aren’t going to push the county’s guilt since it would be tantamount to admitting Pflueger’s guilt too. Instead they are concentrating on attacking the state, even though the state’s complicity is actually just negligence due to their dependence on a corrupt county as opposed to the active complicity of county.

How, given the bribery and persistent illegal activity for financial gain in the face of prior citations and outraged community, all this makes Pflueger a sympathetic figure and somehow immune from prosecution is something only the underinformed readers of the Honolulu papers could cogitate.