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Committee sends bill clarifying Department of Lands counsel to the floor after constitutional debate
Summary
The Senate Resources & Environment Committee voted 7–2 to recommend S 1328, which replaces some statutory references to the Attorney General with the Department of Lands' General Counsel to clarify representation and enforcement roles; the Office of the Attorney General warned the change could strip constitutional functions and may lead to litigation.
The Senate Resources & Environment Committee voted 7–2 on March 2, 2026, to send S 1328 to the Senate floor with a do-pass recommendation. The bill amends Idaho Code to replace references to the "Attorney General" with the "General Counsel for the Department of Lands" in Section 58-120 and related provisions, while reserving the AG's role in specified matters.
Senator Harris, the bill sponsor, said the changes were intended to align statutes with the Department of Lands' (IDL) existing legal structure and to provide clearer authority for IDL staff and opposing counsel. Phil Skinner, Chief Deputy of the Office of the Attorney General (OAG), testified in opposition, asserting the Idaho Supreme Court has held the Legislature may add duties to constitutional officers but cannot remove core, defining functions and give them to others. Skinner told the committee the bill "could not remove the core, defining functions of those officers and give them to others," and argued S 1328 would transfer sovereign litigation authority and remove the AG as legal counsel to the Land Board.
IDL leaders disputed that the measure improperly removed authority. John Richards, General Counsel for IDL, described practical confusion after S 1292 (2024), including a fire-cost recovery case where IDL and OAG attorneys were both involved and a dispute over whether IDL could file an amicus brief. Dustin Miller, Director of IDL, said the department has a good working relationship with the OAG but that statutory language needed clarification to avoid inconsistent representation.
Committee debate centered on constitutional questions and practical effects. Vice Chairman Hart and Senator Kohl supported holding the bill, citing the AG's historical role on the Land Board; their substitute motion failed on a roll-call vote. The committee then approved the original do-pass motion; the roll-call vote recorded aye: Burtenshaw, Guthrie, Harris, Okuniewicz, Cook, VanOrden, Taylor; nay: Hart, Kohl. Senator Okuniewicz said he would reserve the right to change his vote on the Senate floor as he sought more information on constitutionality.
S 1328 now moves to the full Senate for further consideration. Committee discussion repeatedly noted the potential for future litigation should the constitutional interface between the Legislature's authority and the AG's duties remain unsettled.
