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SB 1090: Undermining the AG – IDL V2.0 – 2021

Summary: HB 118 would strip the Attorney General of his role as chief legal advisor to the Land Board and Department of Lands.

ICL's position: Oppose

Current Bill Status: Dead

Issue Areas: Attorney General, Grazing, Idaho Department of Lands, Phosphate Mining, Public Lands

Official Legislative Site

Rep. Mark Harris (R- Soda Springs) introduced Senate Bill 1090 seeking to strip the Idaho Attorney General (AG) of his role as chief legal advisor to the Idaho Department of Lands and the Idaho Land Board. The AG would retain their seat on the Land Board, but would no longer represent the board as counsel. The Deputy Attorney Generals (DAGs) would be dismissed and private council hired instead.

The bill died on a 4-3 vote in the Senate Resources Committee on February 24, 2021.

The bill was also related to two other measures (HB 101 and HB 118). HB 118 did the exact same thing as SB 1090, and was apparently an “insurance” bill in case SB 1090 didn’t pass. Unfortunately for its proponents, SB 1090 got hung up on questions in the Senate Resources Committee.

In a legal opinion, the AG found that “a court would likely determine that [all three] bills violate the Idaho Constitution.” In addition, five former Idaho Attorneys General (several who served on the Idaho Supreme Court) convened a new organization arguing that, with these and other bills, the 2021 Idaho Legislature “threatens the integrity of the Idaho Constitution…[and we will] use every legal avenue to oppose it.”

DAGs currently serve as counsel to most state agencies, including IDL, and the AG reviews qualifications and brings in outside counsel if needed. The hourly rate for these deputies is $58/hour. It’s an efficient system to provide legal advice and, while ICL does not always agree with the State of Idaho’s legal interpretations, many attorneys have served their agencies well for decades.

In contrast, the Idaho Legislature regularly contracts with private lawyers, oftentimes in cases related to natural resources. In the past year, the Legislature has spent over $1.1 million on legal fees to just one lawyer, who charges $470/hour, a far cry from the $250/hour that Sen. Harris estimates in the fiscal impact of the bill.

Some of the concerns from the mining and ranching interests that are pushing the bill include concerns over HB 547 that passed in 2020 through the legislature. It allowed for preferential rights for mining leases and automatic extensions that sell Idaho Endowment Land beneficiaries short. In a letter from IDL to the Idaho Mining Association, Director Miller lays out many of these constitutional concerns. Separately, the cattlemen and ranching interests are concerned that they could lose access to their below-market grazing rates, which many argue do not meet Idaho’s constitutional requirement to maximize financial returns over the long term. The current $7 rate per animal unit month, has resulted in a $600,000 reduction in revenue to the endowment, and it doesn’t appear to satisfy the constitution.