The Michigan Department of Natural Resources (MDNR) as well as other federal, state, local and nongovernmental entities, reached an agreement in 1997 governing hydroelectric power projects in the Menominee River Basin, which includes northern Wisconsin and the Upper Peninsula of Michigan. This agreement, the Wilderness Shores Settlement Agreement (WSSA), provided that Wisconsin Electric (WE) agreed to remove the Pine Dam at the end of its license period in 2025. As the end of the period approached, WE instead sought to extend its license to the Pine Dam until 2040. The Federal Energy Regulatory Commission (FERC) approved the extension, but noted that “to the extent that parties to the WSSA believe that [WE’s} request to extend the Pine Project’s license term violates [the WSSA], they may seek relief in a court of appropriate jurisdiction.”
In response to FERC’s order, the Michigan attorney general filed suit, in the name of MDNR, in Ingham County, Michigan, seeking enforcement of the WSSA provisions relating to the removal of the dam. The defendants moved to change venue to the Upper Peninsula. WE noted that the dam was not located in Michigan and that WE’s contacts with Michigan were limited to the Upper Peninsula. The district court denied the motion for change of venue, and WE appealed.
According to Michigan caselaw, “Venue is controlled by statute in Michigan.” MCL 600.1621(a), which governs venue in contract cases, provides for an action to be filed in “[t]he county in which a defendant resides, has a place of business, or conducts business, or in which the registered office of a defendant corporation is located.” The Legislature may, and has, enact statutes to alter this general rule. The court examined three statutes affecting the venue of actions brought by the attorney general. First, MCL 14.29 provides: “It shall be the duty of the attorney general, at the request of the governor, the secretary of state, the treasurer or the auditor general, to prosecute and defend all suits relating to matters connected with their departments.” The court noted that the governor is not a department, but has many departments under his or her purview. “When the attorney general files or defends these suits, the attorney general is not the identified plaintiff or defendant–the executive branch official or department is.”
The second relevant statute, MCL 14.102, states, “Any action at law brought by the attorney general in the name of the state or of the people of the state, for the use and benefit thereof, may be begun in the circuit court in and for the county of Ingham . . .” Similarly, the third statute, MCL 600.1631, provides that Ingham County is a proper county in which to bring an action “when the action is commenced by the attorney general in the name of the state or of the people of the state for the use and benefit thereof . . .”
The appellate court held, “An executive branch department is a part of the state. When the governor asks the attorney general to file suit on behalf of his or her departments, the attorney general is filing suit in the name of the state or on behalf of the people. And the current suit was filed for the use and benefit of the state and the people of the state-to protect our interests in the flow of the Menominee River by requiring defendants to comply with the WSSA. The attorney general may therefore file suit in Ingham County.”
In conclusion, the court held, “Read together, these statutes direct that the attorney general is the attorney for state departments and when the attorney general files suit on behalf of the state or its populace, that suit may be filed in Ingham Circuit Court.” The court cited an earlier decision, Attorney General v Pub. Serv. Comm., 625 N.W.2d 16 (Mich. Ct. App. 2000), which “acknowledge[ed] the unique status of the Attorney General as a constitutional officer of the state of Michigan and her concomitant statutory authority to represent the state as its chief legal counsel.” Finally, “the Attorney General could have filed this suit against defendants in her own name, giving additional support to the propriety of venue in Ingham County. The attorney general stands in the shoes of the state department under the statutes and could have proceeded as the named plaintiff in the Ingham Circuit Court.” Dept. of Natural Resources v. Wis. Electric Power Co., 2023 Mich. App. LEXIS 5163 (Mich. Ct. App. July 20, 2023).
