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Court upholds runoff penalty

January 3, 2013
The Associated Press

HONOLULU (AP) - A state appeals court upheld a multimillion-dollar penalty against a retired car dealer for illegally grading his land in work that led to a massive landslide in 2001.

The Intermediate Court of Appeals upheld the $4 million penalty last month against James Pflueger, according to Wednesday's Honolulu Star-Advertiser. In doing so, a three-judge panel affirmed a state board's decision.

"We're disappointed with the ruling and looking at our options, including an application for review with the Hawaii Supreme Court," said Pflueger's attorney, Wesley Ching.

Pflueger, 86, is the same person charged in the deaths of seven people when an earthen dam broke on his Kauai property in 2006. He is expected to go on trial on state manslaughter and federal tax fraud charges and has pleaded not guilty.

Pflueger had hoped to set aside the penalty levied by the state Board of Land and Natural Resources in the earlier case but was denied by the appeals court. The board levied the penalty for runoff from his property that damaged a beach and a pristine coral reef on Kauai's north shore in 2001.

Pflueger's Pilaa 400 LLC owned the 383 acres of rural land that sloped downhill to Pilaa Bay. On Nov. 26, 2001, a rainstorm led to a portion of the land sliding across the white sand beach and covering the reef. The board found that the company's "massive and unauthorized" grading, filling and other work resulted in the mudflows. The state land board assessed Pflueger's company $3.9 million in damages and nearly $70,000 for administrative costs.

The U.S. Environmental Protection Agency and the state Department of Health also sued Pflueger over the massive mudslide, alleging violations of the federal Clean Water Act and the state Water Pollution Act. In 2006, Pflueger agreed to pay nearly $8 million in penalties, including $5.5 million in remediation and restoration work.

In appealing the state board's penalties, Pflueger argued that the federal consent decree resolves the state's claims and bars the board's enforcement actions. The appeals court rejected that argument, pointing out that the two cases involved separate state departments and different allegations.

 
 

 

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