LIHU'E, Kaua'i — The presiding judge in an upcoming wrongful-death trial over the Kaloko dam tragedy refused yesterday to release the state as a defendant in the civil lawsuit.

However, Circuit Judge Kathleen Watanabe did narrow the points on which the state will be defending itself from three to one.

The change led the state's attorney, Kenneth Robbins, to call the judge's decision "a two-thirds victory," while other defense attorneys noted the state still has to go to trial.

After hearing arguments of lawyers from both sides, Watanabe said the state remains potentially liable in the suit as the landowner of the Kaloko ditch, a stream diversion that feeds into the Kaloko Reservoir.

The Kaloko dam broke open on the morning of March 14, 2006, releasing a torrent of water that killed seven people in several houses that were destroyed downstream.

Watanabe agreed with the state's argument, however, that it should not be liable on two other points:

• That the state improperly allowed the Public Utilities Commission to approve a 2005 stock transfer for Kilauea Irrigation Co. Inc., the entity that operated an irrigation system with water from the Kaloko Reservoir.

• That the state failed to follow its own statutes and regulations, including flood control and pollution control laws administered respectively by the state departments of Land and Natural Resources and Health.

The state in February asked in a motion for summary judgment that it be removed from the case on all three points.

Other defendants include James Pflueger, Pflueger Management LLC, trustees of the Mary L. Lucas Trust, Kaua'i County, C. Brewer and Co. Ltd. and Kilauea Irrigation Co. Inc. All are either current or former landowners in the area of the Kaloko dam, reservoir and related irrigation works.

Plaintiffs are the families of the seven people killed when the Kaloko dam broke open. Those killed were Daniel Arroyo, Christina McNees (who was pregnant), Alan Dingwall, Aurora Fehring, Rowan Fehring Dingwall, Wayne Rotstein and Timothy Noonan.

Three wrongful-death lawsuits will be addressed in one civil trial beginning Sept. 8. Four property damage lawsuits are set to be tried together beginning May 3, 2010.

A report on an attempted pre-trial settlement of all the civil suits during the month of March was due to Watanabe on Tuesday. Attorneys wouldn't comment on the record yesterday on settlement attempts, but indicated they are preparing for a fall trial.

Seven counts of manslaughter and one count of first-degree reckless endangering against Pflueger are set for a June 15 criminal trial.

Circuit Judge Randal Valenciano will hear motions by Pflueger's attorneys April 21 and 22 seeking to disqualify state Attorney General Mark Bennett from prosecuting that case and accusing him of prosecutorial misconduct. Pflueger's attorneys' evidence in those cases has been sealed by the judge.