Friday, February 5, 2010


LYIN’ DOG AND SLEEPIN’ BABY: Our Monday ridicule of the county’s explanation for why they paid $7.5 million in the Ka Loko Dam tragedy lawsuit while the state only paid $1.5 million elicited two quite opposite responses from readers.

While one close to the story said we pretty much got it right another challenged our interpretation asking for specific references.

In attempting to debunk County Attorney Al Castillo’s contention that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” and show it had everything in the world to do with culpability we noted that there had to be some kind of gross misconduct or even malfeasance on the part of the state to override any general immunity.

So we turned to the Hawaii Dam and Reservoir Safety Act (DRSA [§179D]) and found yes, the state has a pretty much blanket immunity regarding dams and reservoirs in that “no action or failure to act under this chapter shall be construed to create any liability in the State” [§179D-4] .

And yes that can be overridden by “willful acts or negligence by the board or its agents” [§179D-6] in certain situations- the precise situation that occurred between the state and the county in failing to “enter upon such private property of the dam or reservoir”.

In other words it’s even worse than we suspected in terms of culpability of the county because it seems it was indeed the county’s willful inactions that precipitated the state’s liability in the case.

Those that sat through the marathon year-and-a-half “Developers Gone Wild” Kaua`i County Council grubbing and grading investigations will remember that a good deal of it dealt with asking then-Acting County Engineer Ian Costa and Chief of Engineering Division Wally Kudo why the heck they didn’t just go onto Jimmy Pflueger’s (and Tom McCloskey’s) properties and inspect them.

Though they had the legal right to do so they claimed it was a lot more difficult for them to do it than the state, needing assistance from the county attorney’s office and the courts.

At that point members of the council got them to say they would try to work with the Department of and Natural Resources (DLNR) which oversees the DRSA and is specifically “authorized to enter upon such private property of the dam or reservoir as may be necessary in making, at the owner's expense, any investigation or inspection required or authorized by this chapter”.

Presuming that, under pressure from the council- and despite the interference of then Mayor Maryanne Kusaka who according to an internal memo from one of Kudo’s underlings squelched any action against landowner Jimmy Pflueger- Kudo and Costa contacted DLNR to have them assist them, and again presuming that the DLNR failed to assist them- as evidenced by the fact that it eventually took the federal EPA to come in and enter the property- it would seem that the state’s liability consisted entirely of a small ancillary amount of grossly negligent culpability in the county’s malfeasance and misconduct.

That, if anything, makes Castillo’s contention that

While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us

even more absurd because it would seem that if anything it was the state that gambled that, by virtue of having even “deeper pockets” than the county, paying their relatively small share was better than trying to show it was entirely the county’s fault in that any “negligence” was primarily purely driven by the county’s actions and inactions.

The responsibility for the whole debacle- and therefore the deaths of the seven people who died primarily due their concerted effort to obstruct justice- seems to sit squarely in the laps of Kusaka, Coast and Kudo.

According to the DRSA [§179D-8b]:

Any person who negligently or after written notice to comply, violates this chapter or any rule, order, or condition adopted, issued, or required under this chapter, or knowingly obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter, shall be guilty of a class C felony.

Why the trio are not facing criminal charges along with Pflueger is a question that must be addressed by Kusaka’s fellow Republican Linda Lingle’s Attorney General Mark Bennett who is selectively and personally prosecuting Pflueger in a trial scheduled for this summer.

But the question one person who knew the seven who died rhetorically asked us recently- “how does Kusaka sleep at night”- is one only she can answer.

Only a true sociopath could.

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