“Whatever I did with that property was my business. I didn’t ask if I could cut a tree down.”
So stated James Pflueger in a February 2003 deposition regarding a dispute over the sale of roughly 400 acres at Pila’a, on the North Shore of Kaua’i.
Back when he was “beautifying” his property (doing far more than cutting trees), Pflueger’s authority over the land, at least to him, seemed without question. Despite recent ownership changes, he had long controlled the large acreage of the former sugar land at Pila’a. For years, he grazed cattle there when the property still belonged to the Mary N. Lucas Trust (of which he is a trustee and beneficiary).
Pflueger’s tenure on the land first attracted notoriety in 2000, when a mile-long berm up to 15 feet high was built along Kuhio Highway, on the mauka boundary of the property. After many in the community raised a hue and cry over blocked coastal views, the county required the berm to be lowered to 5 feet. At the time, Pflueger claimed he had been off-island when the berm was built and didn’t intend it to be as high as it was.
The berm was visible; not so for much of the other work Pflueger was undertaking on the land. All that changed after a massive landslide in November 2001, the result of excessive grading and a heavy rain. Since then, the area has become a focal point of lawsuits, criminal investigation and media attention.
Later this month, the state Board of Land and Natural Resources is once more planning to take up its part in the saga set in motion when Pflueger’s bulldozers first began building up berms, grading off hills, and damming streams in the mid-1990s. When it meets on Kaua’i August 22, the board is expected to take action on unauthorized grading, grubbing, filling, road construction, landscaping, drainage improvements, and damage to state resources from excessive sedimentation at Pila’a.
A Closet Full of Suits
As Hanalei District Judge Trudy Senda put it last March, Pflueger’s activity at Pila’a “has been beaten to death” by the local dailies and television news. But it’s no wonder.
The Kaua’i County departments of Planning and Public Works, the state departments of Health and Land and Natural Resources, the state Commission on Water Resource Management, and the federal Environmental Protection Agency have all jumped in with enforcement actions. There are also the civil suits. One filed in state court by members of the family of Richard and Amy Marvin claims their lives, home, and livelihood were harmed by Pflueger’s activities. A second has been filed in federal court by two Kaua’i groups (the Limu Coalition and the Kilauea Neighborhood Association) concerned over the impacts of Pflueger’s actions on natural resources. A third was brought by the county in state court, alleging Pflueger violated the state’s Coastal Zone Management Act.
Officials trying to sort out the mess say they’ve never before seen a case like this. And keeping track of each separate string in the knot isn’t easy. Many of the parties involved entered into a mediation agreement earlier this year, which is subject to a confidentiality clause. The mediation effort grew out of the Limu Coalition/KNA suit, but includes a host of government entities as well. According to attorney Bill Tam, one of several representing Pflueger, “the mediation was under the auspices of the federal court,” where the Limu Coalition/Kilauea Neighborhood Association lawsuit was filed. “There’s one land owner; we need to have one resolution,” Tam said.
Under the agreement, no notes, transcripts, audio-visual recordings, or any other evidence of mediation may be made without the consent of all parties. What’s more, government records relating to the case, many of which would normally be considered public documents, are being kept under wraps. (In June, the state of Hawai’i sued Earthjustice, the law firm representing the Limu Coalition/KNA, for the return of thousands of pages of documents that it obtained from the Department of Health last February. Beginning in April, the state claimed the records were confidential and should not have been copied.)
The Water Commission’s involvement to date has been to fine Pflueger Properties $12,500 for damming portions of Pu’u Ka ‘Ele and Waiakalua streams to provide watering holes for cattle (although it granted after-the-fact Stream Channel Alteration Permits for the work). And James Pflueger was convicted of petty misdemeanors in Hanalei District Court, fined $3,075 and ordered to serve 450 hours of community service for a number of illegal construction activities.
A lawsuit brought by Kaua’i County concerning disputed actions in the Special Management Area seems to be on hold pending the outcome of mediation.
A March 19 letter from the law firm Fukunaga, Matayoshi, Hershey and Ching, representing Pflueger, may sum up the situation best: “Mr. Pflueger continues to contend with numerous notices of violation and cease and desist orders from the U.S. EPA, the Department of Health Clean Water Branch, and the DLNR. Further, a federal grand jury has been impaneled to determine whether criminal prosecution should be brought…”
Mud and More
On November 26, 2001, a landslide occurred at Pila’a. It began about 8 o’clock in the evening and continued through the night.
A December 7 DOH report on the incident states, “The investigation started on the hill above the Marvin property where approximately 30 or more acres of land were recently graded and a valley was filled with soil… The soil was carried down the slope by runoff. Deep cuts were observed in the hillside where the soil was washed away. The hillside was recently planted with vegetation in rows; no other Best Management Practices were observed. Berms built after 11-26-01 were observed on this graded area adjacent to the hillside. A road down to the Marvin’s property was cut into the hillside by James Pflueger. The cut resulted in a vertical face approximately 40 feet tall with no BMPs in places. Amy Marvin says this was done about a year ago.”
A February 2002 declaration by Richard Marvin states that Pflueger had stripped the hillside of vegetation. “Mr. Pflueger assured me that he had the required permits for the grading, and that the grading was done properly and would not affect my property at Pila’a in any way,” Marvin said.
Then, that fateful, rainy night, the Marvins noticed muddy water running under their lanai door into their house. When Richard went outside to investigate, he saw a wall of mud rushing down from Pflueger’s graded bluff. The mud against his house was already a foot deep, but he hastily made a sandbag barrier to stop further damage. Afraid the mud coming down the hill would smother them, Richard and his family evacuated to his brother’s house on the east end of their property.
The next morning, the Marvins found the rock terracing and landscaping around their house submerged under mud, which had also oozed under the home’s foundation and into the house. Amy’s car also lay trapped in the mud, and the beach was covered with it.
Two days later, Pflueger himself visited the Marvins as they were trying to clean the mess, Richard Marvin said. At that time, Marvin continued, Pflueger told them he’d “do anything to make it right.” On November 30, Pflueger told the Marvins he had hired someone to clean the downstairs of their home and that they could move back in.
“We were shocked as we had never authorized Mr. Pflueger or his employees to enter our home without our knowledge and consent,” Marvin stated in his declaration. “Furthermore, our home was not suitable for habitation and we showed him the mud underneath the foundation and the moisture already absorbed by the walls. He told us he would ‘do anything,’ ‘even tear down the house and build a new one,’ ” Richard said.
According to court documents, Pflueger has not followed through on the promises the Marvins say he made to them. Trial is set for June 2004.
Before the Flood
Pflueger had had run-ins with regulatory agencies for years before the mudslide. What seems to be the first notice of violation bearing his name dates to February 1997, before Pflueger took title to the Pila’a property. The notice came from the Kaua’i Department of Public Works for what it said were grubbing and flood plain management violations, discovered after its staff found that grubbed materials had been dumped in a stream that runs across the property. Because the grubbing exceeded one acre (the maximum area that can be graded without a county permit), it constituted a violation.
Pflueger was ordered to stop work, mitigate damage, and remove debris from drainage areas. The notice was copied to the Department of Land and Natural Resources, the Kaua’i Planning Department, the Kaua’i County attorney, the prosecuting attorney, and Paul Cassiday, trustee of the Lucas Trust, which at the time still owned the property. (Pflueger Properties did not take title to the land until April 1997.)
In 1998 and 1999, Pflueger was investigated by various state, county, and federal agencies for impounding Pu’u Ka ‘Ele and Waiakalua streams, and for the excavation of a roadway, and the construction of a diversion pool at the base of a waterfall on Waiakalua Stream.
On November 11, 1999, to cure violations with the Water Commission, Pflueger submitted applications for after-the-fact permits for his work.
In April 2000, the Planning Department granted Pflueger Properties a tentative approval for the consolidation and resubdivision of about 400 acres at Pila’a into 19 new lots. The tentative approval included a condition at the request of the Department of Health that a National Pollutant Discharge Elimination System (NPDES) permit be obtained if more than five acres of total land area were going to be disturbed.
On June 20, 2001, the Water Commission fined Pflueger $12,500 and voted to deny the after-the-fact Stream Channel Alteration Permits unless Pflueger addressed concerns raised by the Kaua’i County Department of Public Works, the U.S. Army Corps of Engineers, and the state Department of Land and Natural Resources’ divisions of Aquatic Resources and Historic Preservation. Pflueger’s petition to amend the Interim Instream Flow Standard of Waiakalua Stream was denied and he was ordered to remove a pump and distribution pipes.
After the Deluge
Following the November 2001 mudslide, the number of investigations, notices of violation, and cease-and-desist orders from the DOH and the EPA multiplied, as did the demands for mitigation plans.
The Kaua’i Department of Public Works determined that Pflueger Properties had constructed two road accesses through the county’s Special Management Area, an area along the coast subject to restrictions intended to protect coastal water quality. Pflueger was ordered to apply for an SMA permit.
A DOH inspection on January 9, 2002 found the waters were still dirty, with “a plume of turbid water … observed along the shoreline extending approximately 15 feet out.” And despite being under heavy watch by government officials, Pflueger had installed a culvert under the new road, about 24 inches wide and 40 feet long, diverting storm water and irrigation runoff into the ocean.
For months, the discharge of muddy water into the ocean continued.
In April 2002, the DOH reminded Pflueger attorneys Tam and Max Graham that Pflueger needed to apply for a NPD’S permit to cover discharges relating to construction activity on the property. On May 23, Pflueger submitted a notice of intent to file for a General Permit Authorizing Discharges of Storm Water Associated With Construction Activity, otherwise known as an NPDES General Permit. The following week, DOH inspectors noticed a water line discharging landscape irrigation flows across disturbed land into the ocean. Landscape discharges are prohibited unless explicitly authorized by an NPDES permit.
In June, the Environmental Protection Agency issued a Findings of Violation and Order. Pflueger had been notified, the EPA said, “at least as early as April 2000 of your obligation to obtain the necessary permit for storm water discharges associated with construction activity, yet to date you have failed to do so.” Between July 2001 and the end of April 2002, the EPA claimed, Pflueger likely discharged sediment into ocean on at least 109 days. Pflueger was asked to submit a stabilization plan within a month, and complete the control measures by December 31, 2002.
Discharges of muddy water continued through August, the same month Earthjustice sued in U.S. District Court on behalf of the Limu Coalition and Kilauea Neighborhood Association, seeking to stop the destruction of the coral reef. Late that month, the DOH granted an NPDES general permit to Pflueger allowing him to discharge storm water for emergency control measures only.
Last October, Kaua’i County filed a civil suit against Pflueger, seeking an injunction and damages resulting from filling, grading and grubbing work done on about six acres within the SMA. Incidents covered in the lawsuit date back as far as 1998.
In documents filed in Kaua’i Circuit Court, Pflueger’s defense attorneys have asserted that the environmental quality of the SMA has not suffered permanent harm, and that if any areas were permanently damaged, it was the result of an act of God. As for the county’s desire to have the area restored, “the concept of restoration to ‘original condition’ is a misnomer because the environment is not a fixed state but is always changing,” one document states.
The defenses in the Marvin family case are similar, stating that Pflueger’s actions constituted a “reasonable use” of his property and that Pflueger “exercised reasonable precautions” not to injure anyone through negligence. The rainstorm and the resulting damage to the Marvins’ property, again, stemmed from an act of God that Pflueger could not have anticipated.
In March, Pflueger pleaded no contest in Hanalei District Court to criminal charges of violating the county’s grading ordinance at Pila’a and Kaloko reservoir (mauka of Kuhio highway in the Kilauea area). Five charges had been lodged against Pflueger, four against Pflueger Properties, and two against Pila’a 400, LLC, a Pflueger company seeking subdivision and domestic water wells for the Pila’a land, but a plea agreement led to the dropping of several charges. Those that remained – regarding a road cut, placing fill material on a plateau, grading and filling a valley, grading by a reservoir – targeted only James Pflueger.
Because he was a first-time offender, Pflueger was fined $3,075 and ordered to complete 450 hours of community service. Even so, the Honolulu Star-Bulletin reported, District Judge Senda reprimanded Pflueger: “You were not acting like a regular guy. You were acting like somebody special. You are spending an almost obscene amount of money for remediation [reportedly $7 million], which could have been avoided if you had shown respect for the law.”
Emergency Measures
On June 12, the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands briefed the Land Board on its investigation of Pila’a. “Essentially, the reason we are here is because natural resources have been damaged. And the damage is significant and extensive and is because of an individual acting irresponsibly,” said Sam Lemmo, a planner with the office. He added that it had taken a year to get to the point where staff had enough information to brief the Land Board.
In discussions involving the DLNR, the Department of Health and Kaua’i County, all decided that emergency erosion control was needed, Lemmo said. Former DLNR director Gilbert Coloma-Agaran authorized Pflueger in June 2002 to conduct activities to reduce discharges, provided Pflueger submitted a Best Management Practices Plan.
Since then, the engineering firm Belt Collins has designed and carried out Phase 1 of those emergency control measures. The company has built a 12-foot high rock dam with a fabric filter and several retention basins to hold runoff. The drainpipe that Pflueger installed at the shore to discharge runoff into the ocean has been removed, and gunnite has been sprayed atop the vertical cut in the hillside to reduce slumping.
Belt Collins engineer Paul Wallrabenstein told the Land Board that, for the most part, the measures held up during a major storm. Those elements that failed were replaced. “The site is protected,” Wallrabenstien said.
Amy Marvin told Environment Hawai’i that the last runoff was in late March and early April 2003, adding that the Department of Health has issued violations for the events. “We haven’t had much rain since they supposedly repaired the problem. Rain will tell. These recent events caused silt to be deposited onto the reef and into the sand, where the winter surf had begun a healing process. We now have to endure another summer of muddy conditions. Every day at high tide it is so muddy that we can’t even swim,” she said.
Wallrabenstein told the Land Board that in the future, his company plans to fill in and grass the lower part of a steep cut in the hilliside close to the shore. In the upper part of the cut, he is proposing to drill into the soil, install reinforcing steel, and seal it with gunnite.
In two 50-foot wide areas, the gunnite will reach as high as about 35 feet. The rest of the area to be gunnited is not as high, but, he said, extends four or five-hundred feet.
Dueling Studies
Once the emergency measures were underway, the DLNR turned its attention to assessing the impact of the mud flows on the marine environment. The department enlisted the aid of several scientists: Paul Jokiel, principal investigator for the Coral Reef Assessment and Monitoring Program; Chip Fletcher, coastal geologist with the University of Hawai’i; William Walsh and Dave Gulko of the state Division of Aquatic Resources; and Ryan Okano, with the UH Botany Department.
Studies they did at Pila’a last August included a sediment survey, coral reef assessment, fish survey, monitoring of meterological and hydrological data, and an algae survey. All were directed toward gauging the impact of runoff from the November 2001 event and later heavy rains in 2001 and 2002.
“We also evaluated evidence of earlier sedimentation events in mid 1990s that impacted the reefs at Pila’a,” the DLNR’s Lemmo said.
The team found a dark layer of mud, indicating of a single severe event, beneath the beach’s active layer. At low tide, when the water is calm, the bay is clear. During higher tide, the nearshore sediments are resuspended and the water becomes muddy.
“This is one year after the initial event,” Lemmo said, referring to the time of the studies, “so we find that this may have been occurring every day since the event and probably created a tremendous impact on the reef.”
The team compared the impact site with a nearby control site on the opposite side of a deep channel. In summary, the researchers found more fine sediments, and fewer normal corals, intertidal organisms, algae, and fish at the impacted site. There was also less fish and algal diversity at the impacted site, with one species of macro-algae dominating the area. At the control site, 3 percent of coral were dead or dying, compared to 13 percent at the impact area.
Contradicting the team’s findings is a March 2003 report done for Pila’a 400 by Richard Grigg, Eric DeCarlo and Steven Dollar. Grigg and DeCarlo are with the UH Oceanography Department; Dollar is with Marine Research Consultants.
In that study, Grigg contends that Pila’a has few corals because natural conditions limit coral growth. These conditions include shallow water during low tide, which exposes corals to the air; waves that cause scouring and smothering of corals by sand; periodic high temperatures; low salinity; high solar radiation; and runoff.
“The sediment run-off in November 2001 on the Pila’a reef flat did not exceed levels of sediment runoff that occur there naturally,” the study by Grigg and others says. “The amount of sediment that flowed into the ocean in 2001 was in fact small. Twenty-three times in the last 37 years, the amount of annual soil loss [based on models] from the Pila’a property exceeded the volume of soil that entered the ocean at Pila’a in 2001.” In addition, they say, carbon 14 dating of about a dozen individual Pocillopora meandrina corals indicate that many dead coral heads died several decades ago, and not as a result of recent runoff events.
“One of the dangers of the information we’ve heard so far is the tendency to take a snapshot of what somebody sees at a moment in time and presume the causes,” Pflueger attorney Bill Tam told the Land Board at the briefing.
But in his briefing report to the Land Board, Lemmo said the Grigg report had problems. Among the issues he identified:
– The sample sizes were too small to establish statistical confidence and to draw conclusions about a large area, Lemmo said. “In fact, for the impacted area at east Pila’a, Jokiel actually surveyed 20 times more coral than Grigg,” Lemmo wrote.
– The transects were subject to human bias. Jokiel’s transects were randomly selected by a computer, whereas Griggs’ were selected by researchers.
– Using soil loss models that rely on historical rain gauge data to estimate annual runoff, without taking into account the condition of the land during rain events, was highly suspect.
– The justification for using nearby ‘Anini as a control site was poor.
– Carbon dating of corals lacks scientific rigor and credibility. “Grigg cites a 1991 reference in his carbon methodology as the source for calibrating his dates,” Lemmo wrote, “Yet it is not made clear how a natural calibration record ending by 1991 can be used to eliminate the possibility of a 2001 mortality event,” the report states.
Next Moves
The Grigg report “sought to disassociate the actions of the landowner and the impact of these actions on the marine environment,” Lemmo said. But assuming that the coral reef communities were damaged by runoff caused by Pflueger, how does one begin to assess an appropriate fine?
In addition to the roughly ten acres of land in the Conservation District impacted by Pflueger’s actions, Lemmo estimated that between 10 and 70 acres of submerged lands, also in the Conservation District, were affected.
“We don’t have a lot of experience in Hawai’i” with fines for damages to coral reefs, Lemmo said. He provided information on fines imposed elsewhere: For a vessel grounding in Florida, a fine of $3.7 million was levied. In the Great Lakes, someone was fined $1 million for sea grass damage, and in Puerto Rico, a grounding in 1997 resulted in a $1.25 million fine.
Here, the state could look at replacement or restoration costs. Or it could quantify and value the damaged coral using Hanauma Bay and the Kona coast as proxies. A 2002 report, “Economic Evaluation of Hawaiian Reefs,” by Herman Cesar, established a value for a protected Hawaiian coral reef of $2,568 per square meter. The 2001 mudflows affected 13.1 acres, according to Lemmo. (In addition, flows in the mid-1990s stemming from past grading account for an additional 5.9 acres, he said.) Using Cesar’s value of coral reefs, fines would reach more than $100 million.
A Florida statute gives the state the authority to assess penalties of up to $1,000 per square meter, plus $250,000 for aggravated circumstances for damages to coral reefs.
In March 2003, Gulko of the Division of Aquatic Resources informed Lemmo that once the suspended sediment is removed, the corals will take a decade to recover. “To facilitate such recovery,” Gulko wrote, loose sediment in the channels and reef holes could be removed under careful supervision. Other mitigation measures might entail sponsoring a public education program (underwriting costs of public service announcements in print media and on radio and television, for example) or a series of rapid ecological assessments of Kaua’i reefs to assist in future management.
— Teresa Dawson
Volume 14, Number 2 August 2003