BOISE, Idaho – Some top officials in Idaho are raising alarms over the Republican attorney general’s decision not to join a 24-state lawsuit against Biden administration waterway protections that opponents say could impact public and private land across the state.
Instead, Idaho Attorney General Raul Labrador’s office says the state will soon be joining another lawsuit filed in Texas, contending it’s a better fit for the state’s interests.
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Emails obtained via a public records request hint at a potentially deep rift between Idaho's attorney general and other state GOP leaders, including the governor.
Labrador's decision surprised some officials. In January, Idaho Gov. Brad Little led the multistate coalition of Republican governors — from Virginia to Alaska — urging the president not to implement the new federal water rules until the U.S. Supreme Court issues a ruling on the matter.
The new rules define which “waters of the United States” — often called “WOTUS” — qualify for protection under the Clean Water Act. The most recent rule change came in December, when the Biden administration repealed a Trump-era rule and expanded some protections. This meant largely going back to definitions in place prior to 2015, restoring protection to thousands of small streams, wetlands and other waterways.
And the rules are always contested. Environmental groups push for definitions that would broaden limits on pollution entering waterways. Agriculture groups, developers and other industries lobby for definitions that would reduce federal protections and ease burdens on businesses.
Once the new rules were finalized, attorneys general in most of same 24 states that signed Little's letter joined together on a lawsuit against the federal government.
Labrador was invited to join the suit, but didn’t.
His office did not inform Little or the leaders of the relevant state agencies that the multistate lawsuit was happening before it was filed without Idaho, according to the requested public documents. State law makes Labrador the attorney of record for most state agencies, and historically the attorney general’s office has consulted with the agencies about potential litigation.
“We were not consulted and knew nothing about the lawsuit until after it was filed,” wrote Jess Byrne, the director of the Idaho Department of Environmental Quality, in a Feb. 23 email to the governor's office. Byrne called the situation, “very concerning to say the least.”
The governor learned the lawsuit was happening through a press release from Wyoming's governor, Little's spokesperson Emily Callihan told The Associated Press via email. Labrador's office only reached out after the governor's staffers began asking about the suit, she said.
“The Governor's Office has requested updates from the Attorney General's Office and will continue to explore all legal options available to Idaho to challenge the federal government's overreach,” Callihan said. “An issue of this magnitude is too important for Idaho not to fight.”
On Friday, Labrador noted that state attorneys general have been fighting the WOTUS rules since President Obama's administration and said the responsibility for legal action on behalf of Idaho lies with his office.
“The Attorney General, not state agencies, determines when, how and where the state sues the federal government to protect the sovereignty of Idaho,” Labrador wrote in a prepared statement. “I think the Attorneys General who have been litigating this issue for well over a decade will be surprised to learn their years-long efforts are being led by Brad Little.”
There’s no love lost between Little and Labrador, who run in different factions within Idaho’s divided GOP. The attorney general previously sought the governor’s seat, but lost to Little in the 2018 primary.
Late Thursday, Labrador’s office told the AP that Little’s office was notified nearly a week ago about Labrador’s plans to join the Texas lawsuit.
“After taking a careful look at the two cases,” Labrador’s spokesperson Beth Cahill wrote Thursday, “the AG determined that litigating alongside Texas makes better strategic sense for our state because Idaho’s unique interests and arguments will be front and center.
The multistate lawsuit is led by West Virginia’s attorney general, who reached out to other states directly. The deadline to reply was Feb. 14, according to West Virginia’s request. The lawsuit was filed Feb. 16 in federal court in North Dakota.
Meanwhile, the Texas lawsuit was filed Jan. 18. A hearing on a motion to put the federal water rules on hold is scheduled less than three weeks away.
During his 2022 campaign for attorney general, Labrador called for faster and more aggressive representation when fighting what he deemed federal overreach on things like the Clean Water Act.
“This is the federal government encroaching on the people of Idaho, on the sovereignty of the state of Idaho, and he refuses to lend a hand,” Labrador said, referring to the incumbent attorney general, Lawrence Wasden, during a TV debate.
Last year, the U.S. Supreme Court heard a business-backed appeal from a northern Idaho couple who wanted to build a home close to Priest Lake. The Environmental Protection Agency ordered Chantell and Michael Sackett to stop work on the property in 2007, determining it was part of a wetland and could not be disturbed without a permit. The Supreme Court has not yet issued a ruling.
When similar multistate lawsuits have been in the works, the Idaho attorney general's office has notified state agencies to see if they want to join, Byrne wrote in an email to the governor's office. That's because the agencies are the “client that would have a substantial interest and legal standing in the matter."
“It would have been our recommendation to join the lawsuit had we been given the opportunity," Byrne wrote.
Chanel Tewalt, the state’s agriculture director, also emailed Byrne and the governor's office this week asking if there were any pending lawsuits.
“I've had a number of people from industry ask where the State is on pushing back against the final rule,” Tewalt wrote.
Idaho Congressman Mike Simpson’s spokesperson Nikki Wallace wrote to Little’s office as well on Thursday, saying Simpson was “disappointed to learn that Raul (Labrador) hasn’t filed — he thinks he should be leading the other 24 states, not being the last as Idaho has led this charge for so long.”