Multistate fight on federal water rule exposes Idaho rift

BOISE, Idaho (AP) — Some top officials in Idaho are raising alarms over the Republican attorney general’s decision not to join a 24-state lawsuit against new waterway protections by the Biden administration.

Instead, the state will be joining another lawsuit filed in Texas, which Idaho Attorney General Raul Labrador’s office says is a better fit for his state's interests.

Emails obtained via a public records request hint at a potentially deep rift between the attorney general and other state GOP leaders, including the governor.

Labrador's decision is unexpected. Idaho Gov. Brad Little led the multistate coalition of Republican governors — from Virginia to Alaska — opposing the federal water rule. Attorneys general in those states then started working together to follow up with a lawsuit. Labrador was invited to join the suit, but didn’t.

Neither Little nor the leaders of relevant state agencies were told by Labrador’s office that the group 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.

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 he's been leading on the issue, and that Little’s office was notified nearly a week ago about Labrador’s plans. The statement said Labrador was glad the 24-state coalition is also fighting what he believes is an “unconstitutional power grab.”

“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.

“We prefer to litigate this issue in the courts rather than through the press,” she added.

West Virginia’s attorney general led the multistate lawsuit, reaching 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 North Dakota’s federal court.

Meanwhile, the Texas lawsuit had been 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.

The new water rules define which “waters of the United States” — often called “WOTUS” — are protected by the Clean Water Act. The most recent rule change came late last year when President Joe Biden's administration repealed a Trump administration rule, and largely went back to definitions in place prior to 2015.

And the rules are always contested. Environmental groups push for definitions that would broaden limits on pollution entering the waterways. Agriculture groups, developers and other industries lobby for definitions that would reduce federal protections and ease burdens on businesses.

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. “I haven't heard from our DAGs (deputy attorneys general) about it and was wondering if you all have any information about additional efforts.”

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.”