The state Department of Transportation's aggressive pursuit to exempt Hawaii Superferry from an environmental review came after a late December 2004 meeting with Superferry executives and Bob Awana, Gov. Linda Lingle's then-chief of staff, state records show.

Awana, in a brief telephone interview on Friday, did not recall the meeting but said he had no part in the state's decision to exempt $40 million worth of state harbor improvements for Superferry from an environmental assessment. "I had no role in that," he said.

E-mail between department staff, obtained by The Advertiser through the state's open-records law, shows that staff believed a significant decision had been made at that meeting with Superferry executives and Awana.

Staff in the department's harbors division had thought before the meeting that the department's recommendations were to require a statewide environmental assessment of the project and to get Superferry to install a quarter stern ramp on the vessel to give it more flexibility at Kahului Harbor on Maui.

But Superferry executives, according to an account by a department staffer, told the state that anything but an exemption was a deal-breaker and that they would not be installing any ramps. The department staffer explained what happened to her colleagues in an e-mail following the afternoon meeting at the governor's offices: "Decisions made: We need to pursue EXEMPTION; and HSF will not provide any ramps on vessel."

LAWSUIT ANTICIPATED

The documents also show that some in the department anticipated a lawsuit challenging the exemption that was eventually filed by environmentalists and ultimately interrupted Superferry's launch last summer. As one harbors division engineer wrote in an e-mail: "Per Bob Awana, if we are going to get challenged, they want to get challenged as soon as possible."

Some in the department, documents show, believed the state had given in to Superferry's demands and continued to argue for an environmental review and their preferred harbor improvements up until the time the state's formal decision was made in February 2005 to exempt the project.

Barry Fukunaga, who was then the department's deputy director for harbors, has said he made the decision to exempt the project in consultation with his construction and engineering staff and then-department director Rod Haraga. Fukunaga told The Advertiser in writing last fall that he did not discuss his deliberations or his eventual decision with Lingle, Awana or state Attorney General Mark Bennett.

Fukunaga later became the department's director and then replaced Awana as Lingle's chief of staff after Awana resigned last year. He repeated in a written statement yesterday afternoon that he made the final decision on Superferry. He said Awana was kept abreast of progress but gave no direction toward an exemption.

"Although the DOT director and deputies did engage in meetings with chief of staff, Bob Awana, to update him on activities occurring in the department and its operations, one of which was the Superferry project, there was no direction issued by him regarding the exemption decision," Fukunaga said. "He was informed of my final determination only after notice was sent to the Office of Environmental Quality Control.

"No meetings regarding this or any matter relating to specific issues surrounding the development of the operating agreement, facility and systems improvements and other technical details were held with the governor."

John Garibaldi, Superferry's president and chief executive officer, said Friday in a written statement that he did not specifically recall what was said at the late December 2004 meeting with Awana and department staff, and "therefore can't comment on a third party's characterization of our position. However, we've always stated that an EA requirement would undermine the project."

The Advertiser has requested the documents to help reconstruct the state's decision to exempt Superferry from environmental review, which the state Supreme Court ruled last August was an error. The court's ruling led to new legal challenges, public protests against Superferry and a special session of the state Legislature. State lawmakers passed a bill that Lingle signed into law that authorizes the ferry to operate under conditions to protect the environment while the state performs an environmental impact statement for the project.

The Lingle administration is releasing the documents in batches after screening the material for attorney-client privilege and executive privilege. The administration rejected a separate request by The Advertiser for Superferry records between the state attorney general's office and other administration officials, citing attorney-client privilege. The Advertiser appealed to the state Office of Information Practices and the appeal was denied.

State Auditor Marion Higa has been provided some of the same documents for her investigation into the Lingle administration's handling of Superferry.

The Lingle administration has cautioned that since all the documents have not been made public — and some have and may be withheld — that The Advertiser "might not be reporting the full picture and could mislead readers."

The documents released to date have revealed that staff at the Department of Transportation — including Fukunaga himself — believed Superferry should do a statewide environmental assessment and that the department contemplated a separate environmental review for the state's harbor improvements. Superferry executives, after being told by department staff in October 2004 that an environmental assessment was necessary, responded by revising the project specifically to qualify for an exemption.

The documents also show that staff in the department's harbors division were frustrated by a lack of operational plans from Superferry and by the rush to sign off on the project to meet Superferry's timetable for financing and launch.

The latest batch of documents shows that harbors division staff placed considerable weight on the outcome of project update meetings with Awana and Superferry executives at the governor's offices in early November 2004 and late December 2004.

It is natural for lower-level staff, in a government setting, to place emphasis on meetings with the chief of staff — who is basically representing the governor — even if the chief only acts as a sounding board or mediator. At the very least, the documents show the decision to exempt Superferry from environmental review was not made by Fukunaga and the department in isolation or primarily driven by the opinions of harbors division staff who were closest to the project.

Even after the exemption route was pursued, some harbors division staff thought the federal Maritime Administration might still require an environmental review for Superferry under federal law, while others pressed for a state environmental assessment of their preferred harbor improvements.

Superferry executives had told the state that the Maritime Administration, which was processing a federal loan guarantee for ferry construction, wanted environmental clearances in place by June 2005. The timetable, Superferry argued, would be in jeopardy if the state required an environmental assessment.

The Maritime Administration approved the loan guarantees for construction of two ferries in January 2005 with the condition that the state give all governmental and environmental clearances, including confirmation there was no need for an environmental assessment of port facilities. In March 2005, the Maritime Administration, citing the state's decision to exempt Superferry, excluded the project from environmental review under federal law.

State documents show that the department's harbors division staff, in early planning, wanted to avoid constructing major harbor improvements until Superferry proved viable after a few years.

But the department's preferred improvements at Kahului Harbor, where there were potential conflicts between Superferry, Young Brothers' barge operations, canoe paddlers and other harbor users, involved activity that would potentially trigger an environmental assessment.

SUPERFERRY WORRIED

The stripped-down plans for a barge and ramp for Superferry at Kahului's Pier 2 were seen by the department as interim, a fallback position to qualify for an exemption and meet the project's target launch date. Yet Superferry was so concerned about a trigger that executives pushed the department not to mention the preferred improvements at the harbor.

Fukunaga, in an e-mail to a staffer less than two weeks before the final decision to exempt the project from environmental review, wrote: "Garibaldi called me, he received his letter today and is concerned that identifying both the preferred improvements and the alternatives establishes a linkage and requires our doing the environmental reviews for everything.

"I informed him that we did not see it that way. In any event he is going to confer with his legal. We'll see."

The department had also been hearing for months from people on Maui who wanted an environmental review. Isaac Hall, the Wailuku attorney who had fought the expansion of Kahului Airport, was asking the department for the state's letter of intent to Superferry, the facility layout plans and documents related to the $40 million in state harbor improvements and the exemption process.

A department memo before the late December 2004 meeting with Superferry executives and Awana had warned of the legal risks of not requiring an environmental assessment for the project. Now, in the weeks before the state's final decision, Hall was gathering information he would later use in his lawsuit on behalf of the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition that would eventually reach the Supreme Court.

"Get ready," one harbors division staffer told a colleague in an e-mail after seeing Hall's request, "it's starting ..."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.