House Bill 118 — Legal Counsel for the Department of Lands

House Bill 118 — Legal Counsel for the Department of Lands

Fred Birnbaum
February 18, 2021

Bill Description: House Bill 118 requires that the State Department of Lands use to outside legal counsel and prohibits the use of legal counsel from the office of the Attorney General.

Rating: +1

Does it violate the principles of federalism? Conversely, does it restore or uphold the principles of federalism? 

The Attorney General is a voting member of the State Land Board (also known as the State Board of Land Commissioners). As one of five members who make policy decisions, the AG has policy influence on the request of the Department of Lands’ requests. Requiring the Department of Lands to use the AG’s office in “suits, actions, contests, or controversies,” before federal land management agencies potentially interferes with legal challenges that the Department of Lands would make that are not supported by the AG’s office. 

Deficiencies in federal land management policies have been documented for decades and aggressive legal action may be required to seek redress. Using outside legal counsel removes the potential conflict that the Department of Lands would face if it sought to take a position that the AG’s office opposed but outside legal counsel thought valid. There is probably no area of public policy where federalism could be better restored than with respect to more state control over the use of federal lands in Idaho. 


Analyst’s Note:

This bill receives the same rating as Senate Bill 1090 which is substantially the same. Finally, both bills identify a cost savings of $382,311 annually from a reduction in the AG’s budget should either of these bills pass. The savings could be achieved with a “trailer budget bill,” reducing the AG’s appropriation by the specified amount. While that would be a clear added benefit, this policy rating does not assume that the savings will be achieved. 

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