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Army Corps asks judge to dismiss North Dakota's lawsuit seeking reimbursement for DAPL costs

Three protest camps were located on Corps-managed land near the oil pipeline's Lake Oahe crossing. The Corps didn't enforce requirements for protesters to have permits, among other shortcomings, the state's lawsuit argued.

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Law enforcement formed skirmish lines to meet protesters marching in a pasture near Dakota Access pipeline construction on Oct. 22, 2016. Greenpeace is asking a state judge to dismiss a lawsuit filed by the pipeline developer accusing the group of working to disrupt construction. Submitted photo
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BISMARCK — The U.S. Army Corps of Engineers asked a federal judge to dismiss the state of North Dakota's lawsuit seeking to recoup $38 million for its response to the Dakota Access Pipeline protests Tuesday, Sept. 17, arguing the state was responsible for enforcing criminal law at the protest site.

North Dakota Attorney General Wayne Stenehjem filed the lawsuit two months ago. He has argued the Corps inaction required the state to provide a large public safety response to the protests, which resulted in hundreds of arrests over eight months.

Three protest camps were located on Corps-managed land near the oil pipeline's Lake Oahe crossing, but the agency didn't enforce requirements for protesters to have permits, among other shortcomings, the state's lawsuit argued.

In a response filed in U.S. District Court in North Dakota Tuesday, the Corps said it communicated with local law enforcement and tribal leadership about problems stemming from the protests, and it assisted with clearing and cleaning up the camps. But it said Congress has provided the Corps with "limited authority" to enforce regulations and rules on property it manages.

"The federal government acquired the Corps-managed land around Lake Oahe without accepting any special criminal jurisdiction over this property," the Corps wrote. "Thus, North Dakota has the authority and responsibility to enforce criminal law on the Corps-managed lands at Lake Oahe."

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Stenehjem, a Republican, said in an interview that the Corps' "preposterous" response is the "same old, tired argument that they've been making from the beginning." He said Tuesday's filing represented the first response the state has received from the Corps in two years regarding the protest costs.

"They are responsible, and were from the beginning, to ensure that their own laws and regulations were being enforced," Stenehjem said.

In its response, the Corps also cited the concept of "sovereign immunity," which it says shields the federal government from lawsuits absent a waiver, and referred to its permitting and enforcement decisions in responding to the protests as "discretionary."

The agency also referred to the federal government's "contentious and tragic" relationship with Native American tribes and said its response to the protests "took place in the context of this complex and contentious history." The protests stemmed from the Standing Rock Sioux Tribe's concerns that the pipeline threatened its drinking water and sacred sites, drawing thousands to south-central North Dakota.

The $3.8 billion pipeline from western North Dakota to Illinois was spearheaded by Texas-based Energy Transfer and began service in June 2017, after President Donald Trump moved to approve it once he took office.

In a statement issued in July, members of North Dakota's all-Republican congressional delegation said they supported the state's lawsuit because the "Army Corps allowed the protest on its land, and our state was forced to pay for law enforcement and public safety costs."

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