Driftless Area Land Conservancy v. Huebsch
| Decision Date | 11 August 2020 |
| Docket Number | No. 20-1350,20-1350 |
| Citation | 969 F.3d 742 |
| Parties | DRIFTLESS AREA LAND CONSERVANCY and Wisconsin Wildlife Federation, Plaintiffs-Appellees, v. Michael HUEBSCH, et al., Defendants-Appellees. Appeal of: American Transmission Company LLC, et al., Intervenors-Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen Paul Hurley, Attorney, Hurley Burish, S.C., Madison, WI, Howard A. Learner, Attorney, Environmental Law & Policy Center, Chicago, IL, for Plaintiffs-Appellees.
Lisa Agrimonti, Attorney, Fredrikson & Byron, Minneapolis, MN, Mary Beall, Brian H. Potts, David Zoppo, Esq., Attorneys, Perkins Coie LLP, Madison, WI, Jeffrey L. Landsman, Attorney, Wheeler, Van Sickle & Anderson, Madison, WI, for Appellants American Transmission Company LLC, and ATC Management, Inc.
Lisa Agrimonti, Attorney, Fredrikson & Byron, Minneapolis, MN, Jeffrey L. Landsman, Attorney, Wheeler, Van Sickle & Anderson, Madison, WI, Brian H. Potts, Perkins Coie LLP, Madison, WI, for Appellant Dairyland Power Cooperative.
Lisa Agrimonti, John Pavelko, Haley Waller Pitts, Attorneys, Fredrikson & Byron, Minneapolis, MN, Jeffrey L. Landsman, Attorney, Wheeler, Van Sickle & Anderson, Madison, WI, Brian H. Potts, Perkins Coie LLP, Madison, WI, for Appellant ITC Midwest, LLC.
Drew S. Jelinski, Attorney, Public Service Commission of Wisconsin, Madison, WI, for Defendants-Appellees.
Before Sykes, Chief Judge, and Flaum and Rovner, Circuit Judges.
The Wisconsin Public Service Commission issued a permit authorizing the construction of a $500 million electricity transmission line in southwestern Wisconsin. Two environmental groups sued the Commission to invalidate the permit. The permit holders moved to intervene to protect their interest in the permit; without it the power line cannot be built. The district court denied the motion, and the permit holders appealed.
Briefing was completed at the end of June, and we set the case for oral argument on September 22, 2020. The permit holders moved for expedited review without oral argument; they want an earlier ruling because the case continues without them in the district court. The environmental groups responded in opposition, and the matter is ready for decision.
We grant the motion. The briefs and record adequately address the single issue raised on appeal, and oral argument would not significantly assist the court. See FED. R. APP. P. 34(a)(2)(C). The case is submitted on the briefs, and we now reverse the district court. The permit holders are entitled to intervene under Rule 24(a)(2) of the Federal Rules of Civil Procedure. In many respects this is a paradigmatic case for intervention as of right.
The plaintiffs are two Wisconsin environmental groups, Driftless Area Land Conservancy and Wisconsin Wildlife Federation. The defendants are the Wisconsin Public Service Commission of Wisconsin and its three commissioners (collectively, "the Commission"). The Commission regulates public utilities in the state. Two of the proposed intervenors—American Transmission Company LLC and ITC Midwest LLC—are Wisconsin electric-power utilities. The third, Dairyland Power Cooperative, is a cooperative association that furnishes electricity to its members.
In April 2018 the two utilities and the cooperative filed an application with the Commission for permission to construct a high-voltage transmission line running from Madison through the southwestern part of the state and ending in Dubuque County, Iowa. A project of this type is subject to heavy regulatory oversight and requires a special permit from the Commission known as a "certificate of public convenience and necessity." WIS. STAT. § 196.491(3). The two utilities each own 45.5% of the project; the cooperative owns the remaining 9%. (We refer to the utilities and the cooperative collectively as "the transmission companies.") The estimated cost of the project is $500 million.
The permitting process requires a "class 1" contested case hearing. Id. § 227.01(3)(a). An exhaustive administrative proceeding ensued, spanning almost 18 months and drawing more than 50 intervenors. At the end of September 2019, the Commission approved the project and issued a permit authorizing the transmission companies to construct the proposed power line and acquire easements through eminent domain as necessary to complete construction.
In December 2019 Driftless Area Land Conservancy and the Wisconsin Wildlife Federation filed this lawsuit against the Commission seeking to invalidate the permit. Both groups had participated in the permit proceedings as intervenors in opposition, but their views obviously did not carry the day. The complaint raises three constitutional claims under 42 U.S.C. § 1983. The first alleges that the adjudicative process was tainted by the appearance of bias because two of the three commissioners had apparent conflicts of interest, depriving the plaintiffs and their members of due process. The second and third claims challenge the authorization to use eminent domain as an unlawful taking of private property in violation of the Fifth Amendment's takings clause.
The Commission filed a motion to dismiss in January 2020. A week later the transmission companies moved to intervene, seeking intervention as of right under Rule 24(a)(2), or alternatively, permissive intervention under Rule 24(b). As required by Rule 24(c), they tendered proposed pleadings—answers and a motion to dismiss—with the intervention motion.
The district judge rejected intervention as of right, concluding that the transmission companies and the Commission have the same goal—dismissal of the lawsuit—and the Commission adequately represents that shared objective. The judge also declined to authorize permissive intervention, saying that adding the transmission companies as parties would "almost certainly and needlessly complicate and delay this case." The judge denied the motion without prejudice and invited the transmission companies to renew their request if "a concrete, substantive conflict or actual divergence of interests should emerge" later in the litigation. Alternatively, he invited a "standby" application to intervene—essentially a placeholder motion that could be activated if circumstances changed. See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng'rs (SWANCC ), 101 F.3d 503, 509 (7th Cir. 1996).
Not content to rely on governmental regulators to protect their $500 million private investment, the transmission companies appealed.
We begin by addressing a skirmish over appellate jurisdiction.1 It will not take long. It is well established that "from the perspective of a disappointed prospective intervenor, the denial of a motion to intervene is the end of the case, so an order denying intervention is a final, appealable decision under 28 U.S.C. § 1291." CE Design, Ltd. v. Cy's Crab House N., Inc. , 731 F.3d 725, 730 (7th Cir. 2013). Notwithstanding this rule, the plaintiffs moved to dismiss for lack of appellate jurisdiction, arguing that the judge's order is not final because he left open the possibility of a new intervention motion if things change later in the litigation.
The possibility of a new motion if circumstances change does not block an immediate appeal. The contingency that the judge has in mind might never arise, leaving the transmission companies on the sidelines of the litigation without appellate review of their intervention claim. Nor does the incantation of the words "without prejudice" automatically defeat finality; what matters is that the judge addressed the substantive merits of the intervention motion and conclusively denied it, freezing the transmission companies out of the case. See United States v. City of Milwaukee , 144 F.3d 524, 531 n.14 (7th Cir. 1998). Finally, the judge's invitation to file a "standby" motion does not prevent finality.
The availability of that optional procedure—an innovation mentioned in SWANCC but not specified in any procedural rule—does not foreclose an appeal. Nothing we said in SWANCC eliminates a disappointed intervenor's right to immediately appeal an order denying intervention.
The plaintiffs rely on City of Milwaukee , but that case actually supports rather than defeats appellate jurisdiction. There the district court denied an intervention motion based on a purely technical error: the intervenor failed to include a proposed pleading with his intervention motion as required by Rule 24(c). Id . at 527. The judge denied the motion without prejudice to give the intervenor an opportunity to refile it with the required pleading; the judge did not address the merits of the intervention question. Id . at 528–29. We dismissed the appeal, explaining that "a decision denying intervention on strictly procedural grounds is not a final judgment when the district court expressly contemplates that the putative intervenor subsequently will file a procedurally correct motion." Id . at 530.
Id . at 531 n.14. That describes this case.
The judge's order is final and appealable under § 1291. CE Design , 731 F.3d at 730. Appellate jurisdiction is secure.
With the jurisdictional hurdle cleared, we move to the intervention question. The rule governing intervention as of right provides:
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...is the end of the case," even as proceedings continue in the district court with the original parties. Driftless Area Land Conservancy v. Huebsch , 969 F.3d 742, 745 (7th Cir. 2020) (citation omitted). It follows that if a district court denies a motion to intervene, then a would-be interve......
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...We reversed that decision and remanded with instructions to grant the intervention motion. Driftless Area Land Conservancy v. Huebsch ("Driftless I "), 969 F.3d 742 (7th Cir. 2020). Rulings on dismissal motions followed, and the judge significantly narrowed the scope of the case. But he den......
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... ... the district judge rejected the permit holders' motion to ... intervene. We reversed that decision and remanded with ... instructions to grant the intervention motion. Driftless ... Area Land Conservancy v. Huebsch (" Driftless ... I "), 969 F.3d 742 (7th Cir. 2020). Rulings on ... dismissal motions followed, and the judge significantly ... narrowed the scope of the case. But he denied the ... commissioners' motion to dismiss based on sovereign ... immunity. The case returns to ... ...
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...second appeal is secure, however, because a denial of intervention "is a final, appealable decision." Driftless Area Land Conservancy v. Huebsch , 969 F.3d 742, 745 (7th Cir. 2020), quoting CE Design, Ltd. v. Cy's Crab House North, Inc. , 731 F.3d 725, 730 (7th Cir. 2013) ; see also Illinoi......
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