BOISE, Idaho — Some Idaho officials have raised alarms over the Republican attorney general’s decision not to join a 24-state lawsuit against the Biden administration’s waterway protections that opponents say would affect the public and private land throughout the state.
However, the office of the Attorney General of Idaho Raul Labrador said that the state will soon join another lawsuit filed in Texas, arguing that it is more suitable for the interests of the state.
Emails obtained through a public records request suggest 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 a multistate coalition of Republican governors – from Virginia to Alaska – urging the president not to implement new federal water rules until the US Supreme Court issues the a judgment on the matter.
The new rules define which “waters of the United States” — commonly referred to as “WOTUS” — are eligible for protection under the Clean Water Act. The most recent rule change occurred in December, when the Biden administration revoked a Trump-era rule and expanded some protections. This means largely returning to pre-2015 area definitions, restoring protection to thousands of small streams, wetlands and other waterways.
And the rules are often contested. Environmental groups are pushing for definitions that would expand limits on pollution entering waterways. Agricultural groups, developers and other industries lobbied for definitions that would reduce federal protections and ease the burdens on businesses.
Once the new rules were finalized, the attorneys general of most of the same 24 states that signed Little’s letter joined together in a lawsuit against the federal government.
Labrador was invited to join the suit, but did not.
His office did not notify Little or the leaders of relevant state agencies that the multistate lawsuit was pending 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 agencies about potential litigation.
“We were not consulted and did not know anything about the lawsuit until it was filed,” Jess Byrne, the director of the Idaho Department of Environmental Quality, wrote in a Feb. 23 email to the governor’s office. Byrne called the situation, “very interesting to say the least.”
The governor learned of the case through a press release from the governor of Wyoming, Little spokeswoman Emily Callihan told The Associated Press via email. Labrador’s office reached out only after the governor’s staff began asking questions about the case, he said.
“The Governor’s Office is seeking 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 for Idaho rests with his office.
“The Attorney General, not state agencies, determines when, how and where the state sues the federal government to protect Idaho’s sovereignty,” Labrador wrote in a prepared statement. “I think the Attorneys General who have been dealing with this issue for over a decade will be surprised to learn that their years of effort have been led by Brad Little.”
There’s no love lost between Little and Labrador, who run on different factions within Idaho’s divided GOP. The attorney general previously sought the governor’s seat, but lost to Little in the 2018 primary.
On 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 case.
“After a careful review of both cases,” Labrador spokeswoman Beth Cahill wrote Thursday, “the AG determined that litigating with Texas makes better strategic sense for our state because for Idaho’s unique interests and arguments are front and center.
The multistate case was led by West Virginia’s attorney, who directly reached out to other states. The deadline to respond is February 14, according to West Virginia’s request. The case was filed on February 16 in federal court in North Dakota.
In the meantime, the Texas case was filed on January 18. A hearing on a motion to set federal water rules 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 sees as 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, in a debate on TV.
Last year, the US Supreme Court heard a business-backed appeal from a northern Idaho couple who wanted to build a home near Priest Lake. The Environmental Protection Agency ordered Chantell and Michael Sackett to stop working on the property in 2007, determining that it was part of a wetland and could not be disturbed without a permit. The Supreme Court has not yet made a decision.
When similar multistate cases are in the works, the Idaho attorney general’s office notifies state agencies if they want to participate, Byrne wrote in an email to the governor’s office. That’s because agencies are “clients who have a lot of interest and legal status in this matter.”
“It would have been our recommendation to join the lawsuit if we had been given the opportunity,” Byrne wrote.
Chanel Tewalt, the state’s director of agriculture, also emailed Byrne and the governor’s office this week asking if there were any pending cases.
“I’ve had many people from the industry ask where the State is pushing back against the final rule,” Tewalt wrote.
Idaho Congressman Mike Simpson’s spokeswoman Nikki Wallace also wrote to Little’s office Thursday, saying Simpson was “disappointed to learn that Raul (Labrador) didn’t file — he thought he should have taken the lead in other 24 states, not least Idaho. has led this charge for a long time.”