USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

Nos. 97-1759

97-1780

97-1760

97-1805

97-1761

97-1995

97-1762

97-1996

97-1763

97-1997

97-1773

97-2070

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, ET AL.,

Plaintiffs, Appellees,

v.

DOUGLAS L. PATCH, IN HIS CAPACITY AS A MEMBER OF THE

NEW HAMPSHIRE PUBLIC UTILITIES COMMISSION, ET AL.,

Defendants, Appellees,

_______________

CABLETRON SYSTEMS, INC., ET AL.,

Applicants for Intervention, Appellants.

_________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Ronald R. Lagueux,* U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Tauro,** District Judge.

______________

_________________________

Steven S. Rosenthal,
_____________________

with

whom

Jeffery A. Tomasevich,
_______________________

Morrison & Foerster, LLP, F. Anne Ross, F. Anne Ross, P.C., John
_________________________ ____________ __________________ ____
J. Ryan,
________

Casassa and Ryan,

__________________

Michael W. Holmes,
___________________

James R.M.
___________

Anderson,
________

Peter H. Grills, David E. Crawford, O'Neill, Grills &

_______________ __________________ _________________

O'Neill, PLLP
_____________

and

Thomas I. Arnold III were

______________________

on

consolidated

brief, for all appellants.

Peter H. Grills,
_________________

with whom

David E. Crawford, O'Neill,

___________________ ________

Grills & O'Neill, PLLP and Thomas I. Arnold III, Assistant City
_______________________
_____________________
Solicitor, were on brief, for appellant City of Manchester.
Philip T. McLaughlin and Martin P. Honigberg on
_____________________
____________________

brief for

the State of New Hampshire, amicus curiae.

Evelyn R. Robinson on brief for
__________________

Ohio Consumers' Counsel and

National Ass'n of State Consumer Advocates, amici curiae.

Dennis Lane,
___________

with

whom Michael E. Tucci and

__________________

Morrison &
___________

Hecker, LLP were on brief, for defendants-appellees.

___________
Allan B. Taylor, with whom
________________

John B. Nolan, Gary M. Becker,

_____________ _______________

and Day, Berry & Howard were on brief, for plaintiffs-appellees.

___________________
_________________________

February 3, 1998
_________________________

_______________
*Of the District of Rhode Island, sitting by designation.
**Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

Utilities Commission

competition

Service

PUC's

After the New

(PUC) formulated

a plan

Hampshire Public

to inject

retail

into the New Hampshire electric power market, Public

Company of New

members,

seeking

Hampshire (PSNH) filed

to

block

inauguration

suit against the

of

the

plan.

Several parties

24.

Not all

appeal from

moved to intervene

succeeded.

the denial of

Six

pursuant to Fed. R.

Civ. P.

disappointed would-be intervenors

intervention.1

Finding no

sign that

the district court abused its discretion, we affirm.

I.
I.

BACKGROUND
BACKGROUND

Two

recount

recent

opinions

the complicated

of

the court

background of

below

this case.

thoroughly

See Public
___ ______

Serv. Co. v. Patch, 173 F.R.D. 17, 22-24 (D.N.H. 1997) (PSNH II);
_________
_____
_______

Public Serv. Co. v. Patch, 962 F. Supp. 222, 225-29 (D.N.H. 1997)
________________
_____

(PSNH I).
______

We draw heavily from those sources as we set the stage

for consideration of the instant appeals.

A.
A.

The Night the Lights (Almost) Went Out in New Hampshire.

The Night the Lights (Almost) Went Out in New Hampshire.
_______________________________________________________

PSNH is New Hampshire's largest electric public utility

and

In

supplies approximately 70%

the

early

1970s, management

demands soon would

ameliorate

law

predicted

that

power needs.

rising energy

outstrip PSNH's generating capabilities.

this bleak

nuclear power

of the citizenry's

outlook, PSNH

plant in Seabrook,

prevented it from

undertook

to construct

New Hampshire.

factoring the plant's

To

Because state

construction costs

____________________

1Three

of the would-be

intervenors also have

attempted to

take protective appeals from other orders entered by the district

court.

We deal with these additional appeals in Part V, infra.

_____

into the rate

relied

structure until Seabrook became

primarily

on

commercial

project.

Regulatory

Seabrook's

progress to the

albatross

wrapped

Management's

reform

was not

around

that Seabrook

proved much too sanguine:

unit

and

public

point where

snugly

forecast

financing

operational, PSNH

to

underwrite

opposition

hindered

the facility

PSNH's

would be

the

became an

corporate

on line

neck.

in 1979

construction of the plant's generating

completed until

1986, and

even then,

commercial

operation was infeasible.

As delays mounted, so too

did PSNH's indebtedness.

In

1988,

PSNH

no longer

could

bankruptcy protection in

the

District of

fearful that

unusually

the

debt and

the United States Bankruptcy

New Hampshire.

The State

of New

filed

for

Court for

Hampshire,

its residents might find themselves consigned to an

rustic

proceedings.

service

The

lifestyle,

intervened

State's

participation

resolving the bankruptcy:

depends on the rates

as a regulated

in

the

was

insolvency

essential

to

utility, PSNH's value

that it can charge for electricity, and the

State sets those rates based on its calculation of the investment

that PSNH prudently devotes to the provision of

electric service

(the so-called rate base).

In

to

place

the end, PSNH's creditors and equity holders agreed

$2.3

billion

value

on

the

utility

value

significantly

higher

than

its

pre-bankruptcy

rate

base.

Northeast Utilities (NU) then acquired all of PSNH's stock at the

capitalized price.

As part and parcel of

this transaction, the

State

executed

rate agreement

permit NU

to recoup its investment

impact of

this recoupment

(the

Agreement)

over time.

on ratepayers

To

designed to

mitigate the

while still

providing

meaningful financial relief

Agreement

utility

and

preserved

to the

PSNH's

rehabilitated bankrupt,

status

as

an integrated

the

electric

(i.e., one that engages in the generation, transmission,

distribution of

electric power)

and

promised annual

5.5%

electric rate increases for the next seven years.

The

recovery

NU

Agreement

also

made provision

of PSNH's Seabrook-related costs.

would take

over the

operation of

for

the

gradual

It contemplated that

Seabrook via

a corporate

affiliate, North Atlantic Energy Corporation (NAEC), subject to a

stipulation, contained

permit PSNH to buy

in the

eventual

recovery

the State

Seabrook-generated power from NAEC at

sufficient to recover the

to Seabrook over

Agreement, that

portion of the rate

a reasonable interval.

of

PSNH's

entire

would

prices

base attributable

Finally,

capitalized

to ensure the

value,

the

Agreement allowed PSNH to designate some $400 million of the rate

base

as

regulatory

"regulatory

assets

governmentally

assets."

(which

mandated

producers) became eligible

in

Under

this

purchase

this

case

arrangement, these

consisted

agreements

mostly

with small

for amortization, albeit over

of

power

a long

number of years (thus cushioning the impact on electric rates).

The

bankruptcy court approved the Agreement, see In re

___ _____

Public Serv. Co., 114 B.R. 820, 843 (Bankr. D.N.H. 1990); the New
________________

Hampshire legislature authorized

the PUC to review

it, see N.H.

___

Rev.

Stat. Ann.

362-C (1995);

the PUC furnished

its seal of

approval,

see In re Northeast Utils./Public Serv. Co.,

___ ____________________________________________

P.U.R.4th

385 (N.H.P.U.C. 1990); the New Hampshire Supreme Court

upheld the

PUC's action,

see Appeal of Richards, 590

___ ___________________

114

A.2d 586

(N.H. 1991); and PSNH emerged from bankruptcy.

B.
B.

Due

The Concord Tea Party.

The Concord Tea Party.
_____________________

in part to

the Agreement,

average electric

the annual rate

New Hampshire

rates in

increases mandated by

consumers pay

the nation.

one of

Predictable

the highest

discontent

prompted

the state

legislature to

Restructuring Act, N.H.

1997),

the

Rev. Stat. Ann.

a statute designed

marketplace as

enact

the Electric

374-F:1

to introduce retail

a means

of

to F:6 (Supp.

competition into

reducing electric

rates.

statute directed the PUC to develop and put into effect

than January 1,

1998, a restructuring

electric utility industry.

The

PUC

See id.
___ ___

conducted

restructuring plan

(the Plan)

provides

PUC

access

that the

rates.

However,

open their distribution

plan for New

hearings

apace

on February 28,

to

no later

Hampshire's

and

issued

1997.

set all

electric utilities must

its

The Plan

distribution

unbundle their

distribution services, as

networks

The

374-F:4.

will continue

generation, transmission, and

Utility

utility poles and

well as

wires

to

all

consumers

on

nondiscriminatory

basis.

In

theory,

unbundling will enable customers to select from a roster of power

generators

federal

whose rates will reflect market prices.

law

requires

that

transmission

tariffs

And although

remain

the

province

of the Federal Energy Regulatory Commission (FERC), the

Plan seeks to

have the PUC exercise a modicum of control in this

area as

well by

directing utilities to

proposed tariffs prior to effecting

Plan imports a

distributor, and

select

or

FERC filings.

approval of

Finally,

market domination deterrent, mandating

utility choose whether

directly

obtain PUC

to operate as a power

precluding utilities

indirectly,

in both

from

the

that each

generator or power

continuing to

capacities.

act,

Utilities that

the distribution pathway must divest all power generation

assets by December 31, 2000,

and likewise must sever contractual

and corporate ties with utilities that offer competitive electric

service in

the same

territory.

Similar restrictions apply

to

utilities that select the generation pathway.

Two

pertinent

for

aspects

of

purposes of

the

PUC's

the pending

edict

are

litigation.

particularly

First, in

promulgating the Plan, the PUC declined to treat the Agreement as

a contract that

of

the

constrained its actions.

Plan's

"stranded costs."

Plan's

divestiture

requirement

This phenomenon

competitive market paradigm,

investments

owned

by

an

Second,

is

the

a side effect

creation

of

will occur because, under the

the costs of

integrated

utility

certain asset

will

become

unrecoverable from ratepayers when the utility elects between the

distribution

and

palliative in the

recovery

utility's

generation

form of

charges (SCRECHs).

routes.

interim and

The

Plan

provides

long-term stranded

The PUC will

cost

assess each affected

stranded costs and calculate an appropriate SCRECH for

inclusion

in

the

distribution network.

rates

set

for

access

to

the

SCRECHs ordinarily will be

utility's

calculated by

means of a cost-of-service ratemaking methodology, but if the PUC

concludes

average

that a utility's

rate

benchmark,"

costs and

then it

recovery of its stranded costs.

the regional average

PSNH may not

insists

may

rates exceed

deny

the

utility full

At present, PSNH's rates exceed

rate benchmark, and the PUC

has ruled that

recover completely its stranded costs.

that introduction

a "regional

of the benchmark

Thus, PSNH

will require

it to

write

off the

$400 million

in

regulatory assets

and lead

to

another bankruptcy.2

C.
C.

On

March 3,

The Empire Strikes Back.

The Empire Strikes Back.
_______________________

1997, PSNH,

NU,

and NAEC

(collectively

"PSNH" or "the plaintiffs") filed suit in New Hampshire's federal

district court

against the

complaint limns

a litany

include a claim

premised on section 201(b) of

Act, 16 U.S.C.

and

206 of the

members of the

PUC.

of federal preemption

Their amended

claims.

These

the Federal Power

824(b) (1994); a claim premised on sections 205

same statute, 16

U.S.C.

824(d),

(e); a claim

premised on the filed rate doctrine, see, e.g., Boston Edison Co.
___ ____ _________________

v. FERC, 856 F.2d 361, 369 (1st Cir. 1988) (discussing doctrine);
____
____________________

2On April 7, 1997, the PUC stayed implementation of portions

of the Plan
write

off

to rehear whether the PSNH will in fact be forced to

the regulatory

announced its intention

assets.

The

to revisit the

PUC at

the

same time

question of whether

the

Plan repudiates an enforceable obligation of the State (i.e., the

Agreement).
contested

These
issues

in

developments

clearly

the underlying

case

bear
(e.g.,

upon

certain

ripeness and

abstention), but they do not possess great significance vis- -vis

the question of intervention.

a claim premised on section

201 of the Public Utility Regulatory

Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (codified

as

amended in

claim

scattered sections of

premised on the

U.S.C.

79

to

15 and

16 U.S.C.);

Public Utility Holding

79z-6

(1994).

The

Companies Act, 15

complaint also

several constitutional claims, including

and a

includes

three separate theories

under which the PUC's orders allegedly work an unlawful taking; a

Commerce Clause

claim to the

effect that the PUC

is attempting

impermissibly to regulate interstate commerce; a Contracts Clause

claim

to the

Agreement;

effect that

and

comprehension.

Lastly, the

Plan transgresses an

in

The

1990 and

First

the Plan

Amendment

claim

that

injunction entered by the

inter

defies

complaint contains claims

simultaneously violates

complaint prays,

unlawfully compromises

alia,

42 U.S.C.

for

an

the

ready

that the

bankruptcy court

1983 (1994).3

injunction

against

_____

implementation of

the Plan

____

and a declaration

that the

Plan is

unlawful.

On

temporary

from

March

10,

the

restraining order (TRO)

enforcing those

restrict

1997,

sections

PSNH's ability

Four days

later, the

district

that enjoined

of the

to recover

court

Plan

fully

court heard argument

entered

the defendants

that purported

its stranded

on a

to

costs.

gallimaufry of

____________________

3In the

introductory portions

of their

amended complaint,

the plaintiffs accuse the PUC of affording them insufficient time

to make their case administratively, failing to enforce discovery

rules, and holding
allegations

hearings that were a "mere

sound like

a prelude

to a

pretense."

procedural due

challenge, yet the plaintiffs never make such a claim.

These

process

intervention motions

decision

and took

them under

advisement pending

on ripeness and abstention (issues which, if determined

adversely

to the

plaintiffs, would

The court scheduled

render intervention

a hearing on these

the would-be

briefs.

On the appointed date, Judge Lagueux heard arguments and

portions of

The

to

file amicus

20 and

granted

reserved decision.

intervenors leave

issues for March

moot).

next day, he amended

the Plan that,

in the plaintiffs'

the TRO to

curiae

enjoin

view, repudiated

obligations created by the Agreement.

He then continued the TRO

"pending further order of the court."

In due

only

was

course, Judge Lagueux

ripe,

abstention.

simultaneously

but

also

an

See PSNH I, 962

___ _______

signaled his

ruled that the

inappropriate

F. Supp.

intent to

intervene without further delay, noted that

in effect pending further order,

to schedule a

candidate

at 229-44.

address

case not

The

for

judge

the motions

to

the TRO would remain

and directed the clerk of court

preliminary injunction hearing in June.4

See id.
___ ___

at 244.

On

June

____________________

12,

1997,

the

district

court

denied

the

4On

May 13,

the parties

applicants for intervention)

to

to

(not including

agreed to mediation and

a stay of proceedings, thereby

preliminary

the case

injunction hearing.

the

stipulated

obviating the need for a June

By its

terms, the

stay would

expire coincident with the end of the mediation period, which was
originally
directed

contemplated to
by

periodically

the

May 13

last through
stipulation

and

the end

of June.

order, the

As

mediator

reported on the parties' progress.

Based on these

reports Judge Lagueux twice extended the period.

On September 3,

1997, the mediator reported that

since

has been

dissolved.

efforts had failed and the stay

The

would-be

participate in the mediation process.

10

intervenors did

not

appellants' motions to intervene.

The

court held

securing

in

substance that

lower electric

intervention

as of

ability to protect

that

too

the

they were

and that,

members

defendants

appellants' interests

in all

appellants

events, the

ensured adequate

See id. at 26-27.

___ ___

to

The

New

Hampshire

plaintiffs' side

case.

the

the

presence of the

PUC

representation

of the

raised by

the

court did permit three other

Electric Cooperative,

of the

retained

participate in

the issues

parties, Granite State Electric Company,

the

justify

Plan's implementation

allowed to

in respect

interest in

generalized to

their interests in the

court case;

complaint.

the appellants'

rates was

right;

regardless of whether

as

See PSNH II, 173 F.R.D. at 26.

___ _______

See id.
___ ___

Unitil Corporation, and

to

intervene

at 28.

One

on the

would-be

intervenor,

the City

of Manchester, moved

for reconsideration,

but to no avail.

II.
II.

THE CAST OF CHARACTERS

THE CAST OF CHARACTERS

There are

In an

effort to put

six intervention-related appeals

matters into more workable

before us.

perspective, we

profile the identity and interests of the six appellants.

1.
1.

Cabletron

Hampshire corporation

Rochester,

Systems,

with its

New Hampshire.

It

Inc.

(Cabletron)

principal place

is

one of

is

of business

the largest

New

in

private

electricity consumers in New Hampshire.

2.
2.

The Office of the Consumer Advocate of the State of

New Hampshire (OCA)

"petition

is a state agency statutorily

for, initiate, appear

or intervene in

authorized to

any proceeding

11

concerning rates,

charges, tariffs, and consumer services before

any board, commission, agency, court, or regulatory body in which

the interests of

residential utility consumers are

involved and

to represent the interest of such residential utility consumers."

N.H. Rev. Stat. Ann.

3.
3.

The City

363.28(II) (1995).

of Manchester is New

Hampshire's largest

municipality and serves as the administrator of an electric power

aggregation

program

that

procures

electricity

for

some

260

municipal, residential, and commercial accounts.

4.
4.

profit

The Campaign for Ratepayers' Rights (CRR) is a non-

citizens' group composed of several hundred New Hampshire

residential and commercial electricity consumers.

5.
5.

(RMA)

is

Hampshire.

The

Retail Merchants Association of

non-profit

RMA

corporation

boasts

businesses located in the

load

aggregator.

membership

Concord area.

Under

based

its

aegis,

of

in

New Hampshire

Concord,

New

approximately

700

It acts as

members

an electric

may

purchase

electricity at discounted rates.

6.

Community

Action Programs of New

Hampshire (CAPS)

6.

is an alliance of six non-profit organizations.

organizations provide

assistance programs

of

Its constituent

various kinds

to

low-income families in New Hampshire.

III.
III.

THE LEGAL LANDSCAPE

THE LEGAL LANDSCAPE

The

six

principal

appeals

12

stand

or

fall

on

the

appellants'

entitlement

entitlement depends,

to

intervene

in the first

as

of

right.5

instance, on Fed. R.

That

Civ. P.

24(a), which provides in relevant part:

Upon

timely

permitted to
(2)

application

anyone

shall

intervene in an action:

when the

applicant

claims an

be

. . .
interest

relating to the property or transaction which

is

the

subject

of

the

action

and

the

applicant is so situated that the disposition

of the

action

may

impair or impede

as

practical

matter

the applicant's ability

to

protect that interest, unless the applicant's

interest

is

adequately

represented

by

existing parties.

A party

that desires

under Rule 24(a)(2) must satisfy

(1) a

timely application

to intervene

in a

civil action

four conjunctive prerequisites:

for intervention;

(2) a

demonstrated

interest relating to the property

or transaction that forms

the

basis of the ongoing action;

(3) a satisfactory showing that the

disposition

threatens

of

the

action

to

create

practical

impairment or impediment to its ability to protect that interest;

and (4) a satisfactory showing that existing parties inadequately

represent

its

Mosbacher,
_________

intervention

interest.

966 F.2d 39,

Conservation Law
Found.
__________________________

41 (1st Cir.

1992).

v.

An applicant for

as of right must run the table and fulfill all four

of these preconditions.

dooms

See
___

intervention.

See
___

The failure to satisfy any

Travelers Indem. Co.

____________________

F.2d 629, 637 (1st Cir. 1989).

____________________

one of them

v. Dingwell, 884
________

5In the court

below, the appellants also

sought permissive

intervention under Fed. R. Civ. P. 24(b).

Judge Lagueux rejected

those

F.R.D.

initiatives.

See
___

PSNH II,
________

173

at

29.

The

appellants have not pressed the point in this venue.

13

The application of this framework to the divers factual

circumstances

of individual

than reductionist, approach.

of

Jay,

887

F.2d

338,

cases requires

a holistic,

rather

See International Paper Co. v. Town

___ _______________________
____

344 (1st

Cir.

1989).

The inherent

_______

imprecision of Rule 24(a)(2)'s individual elements

they

"be

keeping

read

with a

United States
_____________

983 (2d Cir.

not discretely,

commonsense

view

of

together,"

the

and always

overall

1984).

Because small differences

among published opinions.

F.2d 968,

in fact patterns

the outcome, the very nature

inquiry limits the

in

litigation.

v. Hooker Chems. & Plastics Corp., 749

_______________________________

can significantly affect

24(a)(2)

but

dictates that

utility of comparisons

of a Rule

between and

See Security Ins. Co. v. Schipporeit,

___ _________________
____________

Inc., 69 F.3d 1377, 1381 (7th Cir. 1995).

____

The

district

intervention as of

appeal.

See
___

court's

right lays

Flynn v.
_____

denial

of

the foundation

Hubbard, 782
_______

F.2d 1084,

motion

for an

for

immediate

1086 (1st

Cir.

1986).

Although

we review

decisions for abuse

F.2d

at 344,

24(a)

is in

Action,
______

court

play,

less

district court's

intervention

of discretion, see International Paper, 887

___ ____________________

that discretion

480 U.S.

has

the

is more

see Stringfellow
___ ____________

370, 383

discretion

intervene as of right).

We

circumscribed when

v. Concerned Neighbors in
_______________________

(1987) (noting

in its

Rule

that the

disposition

of

nisi prius

motions to

will reverse the denial of a

motion

to intervene as of right "if the court fails to apply the general

standard provided

by the text of Rule

24(a)(2), or if the court

reaches a decision that so fails to comport with that standard as

14

to indicate

an abuse of

discretion."

International Paper, 887

____________________

F.2d at 344.

In

the case

inquiry somewhat.

argued that

the

For

timeliness

For

of

or failed

another

the

can narrow

one thing, none

district court

analytic framework

standard.

at hand, we

of the

the

24(a)(2)'s

the rule's

appellees

intervention motions.

of our

appellants have

misapprehended Rule

to appreciate

thing,

the lens

Thus,

general

concede

the

our analysis

focuses exclusively

other

on whether

three elements

of

the court

the test:

properly applied

sufficiency of

the

interest;

likelihood of impairment; and adequacy of representation.6

IV.
IV.

ANALYSIS
ANALYSIS

We first address the common arguments for

pressed

by Cabletron,

Grouped

Appellants").

rationales

for

CRR, RMA,

We

and

then

CAPS (collectively,

turn

intervention offered

intervention

to

by

the

OCA

and

"the

differentiated

the City

of

Manchester.

A.
A.

The Grouped Appellants.

The Grouped Appellants.
______________________

____________________

6The plaintiffs
court's

argue that

denial of the

RMA, CAPS,

and OCA

we should

motions to intervene

because each of

affirm the

district

filed by Cabletron,

those appellants

failed to

accompany its motion with "a

defense
24(c).
24(c)

for which
We

sought."

Fed.

R. Civ.

P.

derelict in their Rule

duties, and that such dereliction ordinarily would warrant

Norberg, 630
_______

instance, however,
oversight.
the

intervention is

agree that these parties were

dismissal of their
v.

pleading setting forth the claim or

F.2d

See Rhode Island Fed'n of Teachers

___ _______________________________

850, 854-55

the district

(1st Cir.

denial of

grounds,

we

1980).

court elected

See PSNH II, 173 F.R.D. at 24 n.2.

___ _______

lower court's

substantive

motions.

the motions

see

no

determination.

15

reason

In

this

to forgive

this

Because we affirm

to intervene
to

revisit

on more

that

Although

particulars

pervades

of

the

there

their

are

modest

respective

arguments of

all

differences

situations,

the Grouped

in

the

common

theme

Appellants:

each

strives to justify intervention as a matter of right by reference

to

the

same

two

interests.

plaintiffs' action asks

First,

the district

they

assert

court to

that

the

strike down

the

Plan, and that such relief, if granted, would sunder their shared

interest in obtaining lower electric

that their

prior (and

Second, they assert

anticipated) participation

administrative proceedings itself

for intervention.

rates.

in the

PUC's

furnishes an independent basis

We find both assertions wanting.

To begin with, the assertion of an economic interest is

procedurally

vulnerable.

vigorously pressed this line

Although

the

Grouped

Appellants

of argument in the district

court,

they

devote

only

cursory

attention

to

it

on

Consequently, it is not preserved for appellate review.

appeal.

See Ryan
___ ____

v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990).
______________

Even

were

the

unavailing.

While the

intervention

as

authoritative

bare

type of

right

is

preserved, it

interest sufficient

not

definition, a putative

amenable

to

would

be

to sustain

precise

intervenor must show

and

at a

minimum that it has "a significantly protectable interest,"

Donaldson v.
_________

"direct,

Though

of

asseveration

United States,
_____________

not contingent,"

these

Appellants'

contours

interest in

400 U.S. 517,

531 (1971),

Travelers Indem.,
________________

are

relatively

the lower

884

broad,

electric

that is

F.2d at

the

638.

Grouped

rates expected

to

16

result from restructuring falls well outside the pale.

Potential economic harm

factor

inquiry.

that

See
___

warrants

serious

to a would-be intervenor

consideration

Conservation Law Found., 966

_______________________

New Orleans Pub. Serv., Inc. v.

_____________________________

in

the

F.2d at 43;

is a

interest

but cf.
___ ___

United Gas Pipe Line Co.,

_________________________

732

F.2d 452, 466 (5th Cir. 1984) (en banc) (holding that an economic

interest

alone is

intervention).

an

for

undifferentiated, generalized interest

intervention

at 466;

Tel. Co.,
________

is too

24(a)(2)

as of right.

(11th Cir.

See
___

economic interest

here

to premise

v. Federal Election Comm'n,

_______________________

1982); United States

_____________

for

on which

the

operates at

of an

New Orleans Pub. Serv., 732 F.2d

______________________

642 F.2d 1285, 1292 (D.C.

dispositive

in the outcome

porous a foundation

Athens Lumber Co.

_________________

1364, 1366

a Rule

It is settled beyond peradventure, however, that

ongoing action

is

insufficient predicate

v. American Tel. &

________________

Cir. 1980).

That principle

Grouped

Appellants'

too high a

level of

After all, every electricity consumer

690 F.2d

theory

of

generality.

in New Hampshire and every

person who does business with any electricity consumer yearns for

lower electric rates.

To cinch

obtaining

quality.

matters, the Grouped

lower electric

rates also

has

contingent

intervenor.

See,
___

or benefit presently enjoyed by

e.g., City of Stillwell

____ __________________

Rural Elec. Coop., 79 F.3d 1038, 1042 (10th

__________________

rather, a

an overly

This is not a case in which ongoing litigation directly

threatens an economic right

would-be

Appellants' interest in

case in

which these

17

v. Ozarks
______

Cir. 1996).

would-be intervenors

any

It is,

root their

professed economic interest in an as yet unrealized expectancy of

lower

electric rates.

observed,

electric

As

numerous market

rates even

the

district court

variables will

after the

PUC

plan.

See PSNH II, 173 F.R.D. at 26.

___ _______

these

variables actually will

guess,

thus demonstrating the

asserted economic

interest.

perspicaciously

impact New

implements a

Hampshire

restructuring

Whether the interaction of

produce lower rates

is anybody's

fatally contingent nature

See
___

Travelers Indem., 884

________________

of the

F.2d at

638-39.

The

Grouped

Appellants

also

claim

protectable

interest within the purview of Rule 24(a)(2) arising out of their

prior participation, and their anticipated opportunity for future

participation,

profess to

in the

PUC's

administrative proceedings.

fear that the plaintiffs' suit

efforts that they

All

will lay waste to the

expended (culminating in

the Plan), and

that

this threat entitles them to intervention.

We

circumstances,

do not

an

dismiss

this claim

this clearly is not

true across the board, we

administrative-proceeding

specific

claims embodied

of

Rule

in

certain

may

intervention as of right.

asserted

cast

In

administrative-proceeding interest

form a sufficient predicate for

district court

lightly.

the

interest

lawsuit

well

Since

must evaluate the

in

light

pending

of

the

before

the

and we must do so in keeping with the pragmatic

24(a)(2).

Furthermore, we

must

conduct

this

assessment

whether

with an awareness

disposition of

the

that Rule 24(a)(2)'s

extant action

may

third tine

as a

practical

18

matter

impair or

cognizable interest

question.

impede the

applicant's ability

to protect

often influences resolution of the interest

See Conservation Law Found., 966 F.2d at 42.

___ _______________________

The plaintiffs' complaint does not frontally attack the

process through which the PUC

pleads causes of

measure

the

plaintiffs'

position

action that will require the

submitted

constitutional

arrived at the Plan,7 but, rather,

Plan

against

benchmarks.

claims

of having

place

to rebalance

electric utility industry

federal

Hence,

will not

district court to

statutory

adjudication

the district

competing

of

court

the

in the

policy views

restructuring or

and

anent

otherwise to

co-opt

the
administrativeproceedingsinwhichthewould-beintervenorsappeared.

The

Grouped Appellants

their estimation,

the

"pristine" questions

plaintiffs'

of federal

that the district court

"nitty gritty" of

resist

this conclusion.

challenges

law, and

do

not

involve

they express

concern

will be forced to immerse itself

ratemaking.

In

We agree that

in the

the district court

will

have

plaintiffs'

fully

to

understand

challenges, but

capable of

facilitate

decretory

the

Plan in

we are

explicating

this review.

significance

to the

the types

issues that merited the inclusion

to

confident that

the interstices

More

that

order

point,

of

of

we

resolve

the

the PUC

is

the Plan

to

deem it

of

viewpoint-balancing

of a wide array of

parties in

____________________

7Although

paragraph

42

of

attributes arbitrary and capricious

PSNH's

amended

complaint

procedural maneuvers to

the

PUC, the plaintiffs have not based any of their federal claims on
these ostensible procedural defects.

19

the

administrative proceedings

are not

present

in this

civil

action, and we therefore are

hard-pressed to see how the present

litigation

impede

will

impair

or

the

would-be

intervenors'

legitimate interests.

The

Grouped Appellants' reliance

on United States v.
______________

South Fla. Water Mgmt. Dist., 922 F.2d 704 (11th Cir. 1991),
____________________________

the

proposition that

proceedings ipso
____

misplaced.

that a water

There,

participation in the

facto justifies
_____

for

PUC's administrative

intervention as

of right,

is

the federal government brought

suit alleging

management district's irrigation and

flood control

policies violated a state environmental statute.

The United

States asked the district court, inter alia, to set a

_____ ____

maximum allowable

farm

water

groups'

motions

groups

district's

Because

concentration of nitrogen

runoff.

Circuit reversed.

farm

See id. at 707.

___ ___

See
___

The

for intervention

It found

statutory

administrative

the

id.
___

federal

as

and phosphorous

court denied

various farm

of right.

The Eleventh

that the Florida statute granted the

right to

participate

implementation of

litigation

in

runoff

essentially

708.

the

decisionmaking process.

water

standards.

bypassed

administrative framework, denial of intervention would

the farm groups' role in the

in

the

eliminate

See id. at
___ ___

Such is

heretofore

have

participate in

not the case

here.

taken

advantage

the

full

PUC's proceedings,

The

and

would-be intervenors

of

their

right

to

their role

in

any

future administrative decisionmaking process is not

in jeopardy.

20

On

the one

hand, if

the plaintiffs

emerged from the administrative

lose,

then the

Plan that

proceedings probably will remain

intact

unless the PUC,

proceedings (in which

in the course of further administrative

the applicants for intervention

an opportunity to participate), modifies

if the plaintiffs

it.

not replace it with

creation.

PUC will be

Rather, the

plan, and

the Grouped

fully

any such

in

intervenors'

On the other hand,

prevail, then the Plan likely

the district court will

Appellants

efforts.

In

left to

will be

will fall

another of its

yet

own

devise a successor

able to

either event,

administrative-proceeding

will have

participate

the

interest

would-be

remains

unsullied.8

The Grouped Appellants also advance the closely related

claim that

right

to

the TRO

issued by the

participate

proceedings before the

in

PUC.

ongoing

district court

or

future

This claim requires

impairs their

administrative

scant comment.

It suffices

to say that

the present litigation has

this entitlement in any real sense.

court

has halted administrative

universal application:

selectively

from

it did

not impeded

To the extent that the lower

proceedings, its orders

are of

not bar

the Grouped

Appellants

in

ongoing

proceeding.

participating

any

____________________

8The
F.2d

Grouped Appellants

776, 779

contention
creates

that

an

(4th Cir.

also cite

1991)

(dictum), in

participation in

interest

that

is

In re Sierra Club, 945

__________________

an

per

support of

their

administrative proceeding
se

sufficient

to

warrant

intervention as of right in

any litigation related to the result

of

the

those proceedings.

language

can be

read as

To

extent that

stating such

decline to follow it.

21

the court's

a rule,

broad

we respectfully

Indeed, the PUC itself has

pending resolution

suspended reconsideration of the Plan

of this case.

While the

undoubtedly would

prefer that the Plan's

immediately,

current

ability to

the

stalemate

participate prospectively

Grouped Appellants

implementation proceed

does not

prejudice

in resumed

their

administrative

proceedings once the litigatory logjam clears.

Any

residual

doubt that

Grouped Appellants' right

step

of the Rule 24(a)(2)

might

linger regarding

to intervene is assuaged

inquiry.

We

the

at the final

agree with the district

court that the Grouped Appellants

simply have not shown that the

defendant commissioners inadequately represent their interests in

upholding the Plan.

To be

make

a minimal

sure, an

showing

applicant for

that

existing parties likely will

the

intervention need

representation

prove inadequate.

See
___

United Mine Workers, 404 U.S. 528, 538 n.10 (1972).

___________________

the adequacy of interest requirement

A party that

seeks to

tangible basis to

afforded

only

by

Trbovich v.
________

Nonetheless,

is more than a paper tiger.

intervene as of

right must produce

support a claim of purported

inadequacy.

some

See
___

Moosehead Sanitary Dist. v. S. G. Phillips Corp., 610 F.2d 49, 54

________________________
____________________

(1st Cir. 1979).

Moreover, the burden of persuasion is ratcheted

upward in this case because

the commissioners are defending

Plan

as

in

their

capacity

governmental body.

Given this fact,

rebut a presumption

their interests.

members

of

the

representative

the Grouped Appellants must

that the commissioners adequately

represent

See Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th

___ _______
_______

22

Cir.

1996).

This

rebuttal

requires

"a

strong

affirmative

showing"

that

representing

the

the

agency

(or

applicants'

its

members)

interests.

is

not

fairly

Hooker
Chems. &
__________________

Plastics, 749 F.2d at 985.

________

The Grouped Appellants attempt to roll this presumption

on

its

side.

principal

They maintain

that

the PUC's

status

as the

protector of the general public interest precludes its

effective representation of their particularized interests.

See,
___

e.g., Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d

____ ____________________________________
_________

994, 1001

(8th Cir. 1993)

(finding the presumption

of adequate

representation overcome where a suit against the state to enforce

an

Indian

treaty

preserving fish and

implicated

the

intervenors'

interest

game stock on their private lands).

in

On the

facts of the case at bar, however, this resupinate reasoning does

not withstand scrutiny:

the PUC's

interests

Grouped Appellants.

Although

in respect

are perfectly

its fellow

march

in

the

motives

None of

appellants and

legal lockstep

plaintiffs'

federal

aligned

with those

claims,

of

the

We explain briefly.

appellant's support for the Plan

of

to the plaintiffs'

when

statutory

that

drive

any

individual

may diverge slightly from those

also from those

defending the

and

of the

PUC, all

Plan

against the

constitutional

challenges.

the Grouped Appellants has propounded any legal argument

that the

PUC members are

subverts

the

PUC's

interest among the

unable or

institutional

unwilling to make,

goals.

Grouped Appellants and the

This

or that

symmetry

of

PUC commissioners

23

ensures

adequate representation.

Reilly, 962
______

F.2d 258, 261-62

See
___

(2d Cir.

American Lung Ass'n

____________________

v.

1992); Washington Elec.

_________________

Coop. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 98

_____
_______________________________________

(2d Cir. 1990); see generally United Nuclear Corp. v. Cannon, 696
___ _________ ____________________
______

F.2d

141, 144

(1st Cir.

1982) (discussing

the factors

that a

federal court must consider in the adequacy of interest inquiry).

If that were not enough

is

we note

that the PUC

uncompromising defense of

that

the

onslaught is

weighs

PUC

will

members have

their Plan.

capitulate

extremely remote.

heavily in favor of

and we firmly believe that it

launched a full-scale,

We think the

cravenly

This

to

the

likelihood

plaintiffs'

circumstance, in

itself,

denying mandatory intervention.

See
___

Washington Elec. Coop., 922 F.2d at 98; Natural Resources Defense

______________________
_________________________

Council, Inc. v. New York State Dep't of Envtl. Conservation, 834

_____________
___________________________________________

F.2d 60, 62 (2d Cir. 1987); cf. Conservation Law Found., 966 F.2d
___ _______________________

at

44 (finding

that

the

Secretary

represented the more parochial

because he

of

Commerce

inadequately

interests of putative intervenors

agreed, with minimal opposition, to

a consent decree

drafted by the plaintiffs).

Finally,

courts must

the

accept at

Grouped

Appellants

face value the

maintain

that

PUC's declaration

of its

inability to represent their interests, no questions asked.

is sheer

speak

persiflage.

louder

commissioners'

desire to

than

Here,

words.

as in many other

In all

events,

the

This

contexts, actions

neither

the

PUC

support of and consent to the Grouped Appellants'

intervene,

nor the

commissioners' insinuations

24

that

they, alone, are

not up to the

task of defending the

Plan, can

strip a federal court of the right and power

indeed, the duty

to

to

make

an

independent

24(a)(2)'s prerequisites are

F.2d at 340-41; Wade

____

determination

met.

as

whether

Rule

See International Paper, 887

___ ____________________

v. Goldschmidt, 673 F.2d 182, 184

___________

n.3 (7th

Cir. 1982).

B.
B.

We turn next to OCA's

OCA.
OCA.
___

quest for intervention.

For the

most part, its arguments parallel those championed by the Grouped

Appellants

the

six would-be intervenors did,

to file a consolidated brief

after all, elect

and we reject them for the reasons

already stated.

We

write separately,

however, to address

one

idiosyncratic feature.

OCA and

two amici, the Ohio Consumers' Counsel and the

National Association of State Utility Consumer Advocates, contend

that the district

court should have allowed OCA

of

a New

right because

authority

to

proceeding

services

represent residential

concerning

before

regulatory

legislative

Hampshire

body."

any

directive

representational

contrasts with the

zeal

statute endows

utility

rates,

charges,

board,

commission,

N.H. Rev.

Stat.

PUC's statutory

tariffs,

and

agency,

OCA

to the

it with

consumers

Ann.

requiring

entirely

to intervene as

cause

mandate to

"in any

consumer

court,

363:28(II).

to

devote

of

the

or

This

its

the consumer

"be the

arbiter

between

the

interests of

regulated utilities."

Id.
___

the

customer

363:17a.

and

the interests

of

Focusing singlemindedly on

25

these disparate

statutory missions, OCA

and its amici

take the

position that the PUC cannot adequately represent OCA's interests

in this case.

state statute can inform the Rule 24(a)(2) calculus,

but it cannot displace the requirement that a would-be intervenor

satisfy each of the

Coop., 922
_____

F.2d at 96-98.

enabling statutes

court must

rule's prerequisites.

of OCA

stake in the

previously

discussed,

Washington Elec.
________________

Whatever discrepancies exist

and the

assess adequacy

issues at

See
___

of

PUC, respectively,

representation in

particular litigation.

the

differences

in

a federal

light of

For

the

in the

the

the reasons

two

agencies'

statutory missions are without consequence here; like the Grouped

Appellants, OCA can point neither to any legal argument favorable

to it

that the commissioners are unwilling

defense of

the Plan,

commissioners that

way.

nor to

any legal

compromises OCA's

or unable to make in

position

interests in

taken by

the

any material

In short, there simply is no divergence of interest between

the two bodies in respect to the causes of action pleaded in this

litigation.9

C.
C.

Like

The City of Manchester.

The City of Manchester.
______________________

the other five appellants, the City of Manchester

____________________

9Our contextualized holding should ease the amici's

that

failure

to

allow

OCA

to

intervene

will

concern

impair

the

effectiveness of similar consumer advocacy organizations in other

litigation.

If, for example,

claims that would necessitate

which consumer concerns

PSNH had included in its complaint

a viewpoint-balancing analysis

played a significant role,

OCA's appeal in a vastly different light.

26

in

we would see

advances arguments grounded both in an asserted economic interest

and

an

extent

asserted

administrative-proceeding interest.

that these arguments replicate

Appellants,

articulated.

we

reject

them

for

To

the

those made by the Grouped

the

reasons

previously

Still, the city's position is different in certain

respects.

Manchester

aggregation

administers

program under

which

municipal

electric

it

procures

electricity

several hundred municipal, residential,

The number

of accounts that

power

for

and commercial accounts.

it represents imbues the

city with

sufficient market power

to acquire

Manchester supports the

Plan because it believes

competition in the electric power

substantial rate

discounts.

that increased

market will allow it to secure

even lower

electric rates for the subscribers to the aggregation

program.

Manchester posits

that this

special interest

as an

aggregator justifies intervention as of right.

Notwithstanding this twist, the

district court did not

believe that Manchester's interest differed

generalized

economic

appellants.

See PSNH II, 173 F.R.D. at 23, 25-26.

___ _______

abuse

unmoved

of discretion

by the city's

interest

in

asserted by

appreciably from the

that ruling.

By

insistence that, as

aggregation program, its interest

each

like

of

the other

We discern no

token, we

are

administrator of the

is not merely in lower

rates,

but

also in

fostering

an

electric power

greatest possible number of competitors.

is more froth than brew.

market

open to

the

This recharacterization

When all is said and done,

Manchester

27

seeks to

promote a competitive

market because it

surmises that

such a development will have a salutary effect on electric rates.

Manchester also attempts to distinguish its position on

the ground that, due to the aggregation program, it is registered

with the PUC as a supplier of electric power.

full circle.

Manchester does

But this brings us

not assert any interest that stems

from its role as a supplier other than a desire to purchase power

at the lowest possible rates and to pass the resultant savings to

its

subscribers.

Hence, the claimed

distinction fails

to set

Manchester apart from the other appellants in any material way.

Manchester has one remaining bullet in its intervention

gun,

but it too is a blank.

The city notes that PSNH is one of

its

largest employers and

taxpayers and, consequently,

has

PSNH's

vital interest

enterprise after

doubts

that

in

ability

market restructuring.

Manchester's

to remain

While

we have

paternalistic impulses

24(a)(2)'s interest requirement

at all, we need

that it

viable

serious

satisfy

Rule

not decide that

issue for two reasons.

party with

the singularly

economic survival and

this case.

in

this

First, and most

obviously, PSNH is

greatest interest

in preserving

can adequately represent that

the

its

interest in

Second, Manchester's positions on the issues at stake

litigation

align

perfectly

with

those

of

the

PUC

commissioners.

Manchester attempts

stands

shoulder-to-shoulder

to defuse

the suggestion

with

defendants

the

by

that it

loudly

proclaiming its disagreement with the PUC's method of calculating

28

PSNH's

herring.

stranded cost

recovery allowance.

This

very red

In the context of the lawsuit, the stranded costs issue

mainly affects

PSNH's takings

claims.

proffered answer to PSNH's complaint,

But Manchester, in

any of

taking.

any rate, PSNH itself adequately

At

that

the PUC's actions

the

city

may

have

its

see Fed. R. Civ. P. 24(c),

___

denies that

interest

is a

amount to

in

a confiscatory

will represent any

contesting

the

SCRECH

methodology embodied in the Plan.

Refined

intervention as

to

bare

of right

essence,

Manchester's campaign

reduces to its

promise that

for

it "will

offer a different angle on

This

the legal questions in this lawsuit."

campaign promise, unamplified by any specifics, cannot bear

the

weight of a

claim that adequate

representation is lacking.

See Moosehead Sanitary Dist., 610 F.2d at 54.

___ ________________________

V.
V.

FLOTSAM AND JETSAM

FLOTSAM AND JETSAM

Cabletron,

attempted

to

appeal

directly related

of their

other

RMA, and the

from

orders of

to intervention.

motions to intervene,

issues before

City of Manchester

this court.

the

district

Because we

court

not

affirm the denial

they lack standing to

See SEC
___ ___

also have

press any

v. Certain Unknown
________________

Purchasers of the Common Stock of and Call Options for the Common
_________________________________________________________________

Stock of Santa Fe Int'l Corp., 817 F.2d 1018,

_______________________________

1021-22 (2d Cir.

1987).

of

Hence, we take

the district

characterization

no view of either their

court's

of

May

those

13 and

orders

July

as

putative appeals

orders or

modifications

to,

their

or

extensions of, a de facto preliminary injunction.

29

In a

relying on

closely related

Railroad Comm'n v.
_______________

initiative, all the

appellants,

Pullman Co., 312 U.S.

___________

496 (1941)

and Burford v.
_______

scrutinize

deciding

court's

Sun Oil Co.,

___________

the

district court's

this case.

refusal to

Burford is not
_______

319 U.S. 315

We

unwillingness to

decline

abstain

(1943), invite us

under

v. Mayacamas Corp., 485

________________

like

an immediately appealable event.

Aerospace Corp.
_______________

abstain from

the invitation.

doctrines

to

district

Pullman
_______

or

See Gulfstream
___ __________

U.S. 271,

278 (1988).

Thus, acceding to the appellants' request would place this

court

in the bizarre situation of deciding a nonappealable order at the

behest of non-parties.

Let

us

be perfectly

clear.

We

recognize

appellants make some

strong arguments in support

The

if it so

district court,

chooses, is

that the

of abstention.

free to

revisit the

issue.

At this point in

the litigation, however, that court

is

the only tribunal with authority to address the question.

VI.
VI.

CONCLUSION
CONCLUSION

We need

electric utility

go no

further.

market in New

The

future direction

Hampshire is a matter

importance, but parties who are merely interested in

of a

right

case do

under

of utmost

the outcome

not automatically qualify

for intervention

Rule

the

24(a)(2).

Under

of the

totality

as of

of

the

circumstances that obtain here, we discern no abuse of discretion

in the

district court's

determination that

the appellants

are

among that number.

In Nos. 97-1762, 97-1763, 97-1773, 97-1780, 97-1805 and

In Nos. 97-1762, 97-1763, 97-1773, 97-1780, 97-1805 and
_______________________________________________________

97-2070, the orders denying intervention are affirmed.

97-2070, the orders denying intervention are affirmed.
__________________________________________________________

The
The
___

remaining
appeals
are dismissed
for
want of
appellate
remaining
appeals
are dismissed
for
want of
appellate
_________________________________________________________________

30

jurisdiction.
jurisdiction.
____________

Costs shall be taxed in favor of plaintiffs

Costs shall be taxed in favor of plaintiffs
________________________________________________

against all appellants.

against all appellants.
______________________

31