BOISE, Idaho (AP) 鈥� Some top officials in Idaho are raising alarms over the Republican attorney general鈥檚 decision not to join a 24-state against Biden administration that opponents say could impact public and private land across the state.
Instead, Idaho Attorney General Raul Labrador鈥檚 office says the state will soon be joining another filed in Texas, contending it鈥檚 a better fit for the state鈥檚 interests.
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 鈥� from Virginia to Alaska 鈥� 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 鈥渨aters of the United States鈥� 鈥� often called 鈥淲OTUS鈥� 鈥� 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 The most recent rule change came in December, when the Biden administration repealed a Trump-era rule and expanded some protections.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 , 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鈥檛.
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鈥檚 office has consulted with the agencies about potential litigation.
鈥淲e were not consulted and knew nothing about the lawsuit until after it was filed,鈥� 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, 鈥渧ery concerning to say the least.鈥�
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.
鈥淭he 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,鈥� Callihan said. 鈥淎n issue of this magnitude is too important for Idaho not to fight.鈥�
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.
鈥淭he Attorney General, not state agencies, determines when, how and where the state sues the federal government to protect the sovereignty of Idaho,鈥� Labrador wrote in a prepared statement. 鈥淚 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.鈥�
There鈥檚 no love lost between Little and Labrador, who run in different factions within Idaho鈥檚 divided GOP. The attorney general previously sought the governor鈥檚 seat, but lost to Little in the 2018 primary.
Late Thursday, Labrador鈥檚 office told the AP that Little鈥檚 office was notified nearly a week ago about Labrador鈥檚 plans to join the Texas lawsuit.
鈥淎fter taking a careful look at the two cases,鈥� Labrador鈥檚 spokesperson Beth Cahill wrote Thursday, 鈥渢he AG determined that litigating alongside Texas makes better strategic sense for our state because Idaho鈥檚 unique interests and arguments will be front and center.
The multistate lawsuit is led by West Virginia鈥檚 attorney general, who reached out to other states directly. The deadline to reply was Feb. 14, according to West Virginia鈥檚 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.
鈥淭his 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,鈥� 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 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 鈥渃lient that would have a substantial interest and legal standing in the matter."
鈥淚t would have been our recommendation to join the lawsuit had we been given the opportunity," Byrne wrote.
Chanel Tewalt, the state鈥檚 agriculture director, also emailed Byrne and the governor's office this week asking if there were any pending lawsuits.
鈥淚've had a number of people from industry ask where the State is on pushing back against the final rule,鈥� Tewalt wrote.
Idaho Congressman Mike Simpson鈥檚 spokesperson Nikki Wallace wrote to Little鈥檚 office as well on Thursday, saying Simpson was 鈥渄isappointed to learn that Raul (Labrador) hasn鈥檛 filed 鈥� he thinks he should be leading the other 24 states, not being the last as Idaho has led this charge for so long.鈥�
Rebecca Boone, The Associated Press
