An Increase in the North Dakota Attorney General Litigation Funds

North Dakota Attorney General Drew Wrigley, right, and Gov. Doug Burgum participate in a meeting of the state’s Industrial Commission at the Capitol on Feb. 27, 2024. (Michael Achterling/North Dakota Monitor)

(North Dakota Monitor) -State lawmakers  voted to approve an additional $3 million for the Attorney General’s Office’s litigation fund — but some Democrats are worried the office is spending too much money on lawsuits.

Chief Deputy Attorney General Claire Ness said unexpected legal costs have drained a pot of money dedicated to covering litigation expenses for state agencies, boards and commissions. It has less than $1 million left for the rest of the biennium.

The money will be transferred from the Attorney General’s Office’s operating budget.

The transfer was approved with overwhelming support from the Budget Section, though all Democrats in attendance voted against it.

Some of the agency’s  expenses came from defending the laws recently approved by the Legislature — like the abortion ban vacated by a Burleigh County judge last week. The Attorney General’s Office has said it will appeal the decision.

House Minority Leader Zac Ista, D-Grand Forks, told fellow lawmakers he would vote against the funding request because he viewed the state’s defense of the abortion ban as a waste of money. He said the Legislature was warned that the law wouldn’t hold up in court.

“Warnings were made last session when we passed extreme legislation that restricted access to health care,” Ista said. “We are now seeing that the attorney general has to come back and ask for millions and more spending authority on its reserves to litigate these extreme cases.”

Ista added that he doesn’t oppose other litigation by the Attorney General’s Office.

Other legal expenses are related to cases from former Attorney General Wayne Stenehjem’s administration, Ness said, including the state’s lawsuit against the U.S. Army Corps of Engineers over Dakota Access Pipeline protest costs. The case had an 18-day trial earlier this year.

“As you can imagine, a multi-day trial of that nature was quite expensive,” Ness told lawmakers.

The agency is also participating in more than 30 lawsuits against the federal government.

The bulk of the lawsuits are against environmental regulations that affect the energy and agriculture sectors, though others include challenges to health care, immigration and voting-related rules.

In most cases, the lawsuits were filed jointly with other Republican-led states.

Rep. Josh Boschee, D-Fargo, said Attorney General Drew Wrigley had told him when he assumed office that he would not file lawsuits for political reasons, and he questioned whether that was still the case.

“His predecessor, Attorney General Stenehjem, was good at just focusing on things impacting North Dakota,” Boschee said.

Boschee said during the meeting that he feared giving the Attorney General’s Office more money would only cause the state’s legal expenses to continue growing.

“I think it gives the attorney general too much discretion to pick and choose which legal battles they take on,” he said. “But even more so, we know that there’s outside interest groups that know when they see a fund like that that they’re going to challenge our laws.”

Wrigley said he hasn’t broken his promise to Boschee.

“I made those comments that  we would never politicize the use of litigation on behalf of the state of North Dakota. We never have, we never will,” Wrigley told the North Dakota Monitor.

He said his office doesn’t take the decision to sue lightly. He said in each case, the lawsuits are challenging overreach by the federal government.

“We’re furthering North Dakota’s interests,” Wrigley said. “I stand behind the decisions that we made.”

In some cases, participating in cases with several other states significantly lowers the individual cost to North Dakota — especially when the state isn’t the lead plaintiff.

“We spend money when we don’t have a choice,” he said.

The funding was also unanimously approved by members of the state’s Emergency Commission on Sept. 9.

During the meeting, Gov. Doug Burgum expressed broad support for the Attorney General Office’s lawsuits challenging federal rules, arguing investing in the legal battles would save the state money in the long run.

“If we aren’t spending this money and fighting on the litigation, we lose revenue directly on the other end as a participant — particularly in the oil and gas industry,” he said.