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North Dakota prepares to file lawsuit for $38 million in pipeline protest costs

North Dakota National Guard troops watch over the north camp Oct. 27, 2016, at the Dakota Access Pipeline protest site on state Hwy. 1806 north of Cannon Ball. Michael Vosburg / Forum News Service

BISMARCK — North Dakota is preparing to file a lawsuit against the U.S. Army Corps of Engineers seeking $38 million in costs associated with the Dakota Access Pipeline protests, said Attorney General Wayne Stenehjem.

The federal government did not respond within six months to a claim North Dakota filed in July seeking compensation for law enforcement and other costs to respond to several months of protests.

North Dakota alleges that the state incurred $38 million in expenses resulting from the corps’ failure to enforce the law when the agency allowed people to camp without permits on federal land.

The state filed the claim under the Federal Tort Claims Act and the corps did not respond by the deadline of Jan. 23, Stenehjem said.

“The statute says if they don’t respond, that is the same as a denial,” Stenehjem said.

The next step is for North Dakota to file a lawsuit in federal court to recover damages.

“We have a six-month window in which we can file a lawsuit for that money, which is what we’re working on,” Stenehjem said.

Public affairs officials with the corps did not return an email seeking comment on Monday, Feb. 11. In July, a corps spokeswoman said the agency doesn’t comment on litigation.

An estimated 1,400 law enforcement officers and 300 other personnel from 11 states and 23 state agencies responded to the protests, according to the state’s claim. The state alleges the protests that began in August 2016 and continued through February 2017 were aggravated by the “negligent and unlawful conduct by the corps.”

In August 2017, the Department of Justice awarded $10 million to help reimburse North Dakota for protest costs.

North Dakota does not intend to subtract that $10 million from its claim for damages, Stenehjem said.

“If they think they're entitled to an offset for that, they can say that in their response to our lawsuit,” he said.